BVA9506466 DOCKET NO. 93-10 783 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a temporary total disability evaluation for a period of hospitalization pursuant to 38 C.F.R. § 4.29 (1994). 2. Entitlement to a temporary total disability evaluation for a period of convalescence pursuant to 38 C.F.R. § 4.30 (1994). 3. Entitlement to an increased rating for nephrolithiasis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from September 1969 to August 1972. This appeal arises from an April 1992 Department of Veterans Affairs, Cleveland, Ohio (VARO) rating decision which denied the appellant's claim for a temporary and total rating based upon periods of hospitalization at a VA medical facility; his claim for a temporary and total rating for a period of convalescence after hospitalization at a VA medical center; and his claim for an increased rating for nephrolithiasis, currently evaluated as 10 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that entitlement to benefits is warranted pursuant to 38 C.F.R. §§ 4.29 and 4.30 (1994) for periods of hospitalization from May 21, 1991 to May 25, 1991; June 5, 1991 to June 8, 1991; June 18, 1991 to June 19, 1991; June 25, 1991; and from June 26, 1991 to June 29, 1991 for nephrolithiasis and a subsequent period of convalescence. He further argues that his nephrolithiasis has increased in severity and warrants a higher disability evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of evidence does not support entitlement to benefits pursuant to 38 C.F.R. § 4.29 and/or § 4.30 (1994) for the periods of hospitalization, and that an increased rating for the appellant's nephrolithiasis is not warranted. FINDINGS OF FACT 1. The appellant served on active duty from September 1969 to August 1972. 2. The appellant is service connected for nephrolithiasis, currently evaluated as 10 percent disabling. 3. The appellant was hospitalized at a VA hospital from May 21, 1991 to May 25, 1991; June 5, 1991 to June 8, 1991; June 18, 1991 to June 19, 1991; June 25, 1991; and from June 26, 1991 to June 29, 1991. 4. The appellant was discharged from the hospital in stable condition with no physical limitations noted. 5. Current manifestations of the appellant's service-connected nephrolithiasis include infrequent periods of exacerbation of pain due to the formation of kidney stones. CONCLUSIONS OF LAW 1. The criteria for a total disability evaluation for periods of hospitalization from May 21, 1991 to May 25, 1991; June 5, 1991 to June 8, 1991; June 18, 1991 to June 19, 1991; June 25, 1991; and from June 26, 1991 to June 29, 1991 are not met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.29 (1994). 2. The criteria for a total disability evaluation for convalescent purposes are not met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1994). 3. The manifestations of the appellant's service-connected nephrolithiasis are no more than 10 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.115b, Diagnostic Codes 7508, 7509 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded." 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is also clear that the appellant's claim has been adequately developed for appellate review purposes by VARO, and the Board may therefore proceed to disposition of the matter. In evaluating the appellant's request for an increased rating, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282 at 287 (1991). Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (1994) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (1994) requires that medical reports be interpreted in light of the whole recorded history. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The criteria for nephrolithiasis is rated under Diagnostic Codes 7508 and 7509. Diagnostic Code 7508, for nephrolithiasis, indicates that this disorder is to be rated as hydronephrosis, under Diagnostic Code 7509, unless there is recurrent stone formation requiring diet therapy; drug therapy or invasive or non-invasive procedures more than 2 times per year. Diagnostic Code 7509 provides a 10 percent disability rating for a mild disability manifested by an occasional attack of colic, not infected and not requiring catheter drainage. A 20 percent rating is assigned when the disability is moderate in nature, characterized by frequent attacks of colic, requiring catheter drainage. A 30 percent evaluation is appropriate in the case of a moderately severe disability, with frequent attacks of colic with infection, and greatly impaired kidney function. A 30 percent evaluation may also be assigned where there is evidence of calculus in the kidney, and/or staghorn or multiple stones filling the pelvis of the kidney. Additionally, 38 C.F.R. § 4.31, provides that where the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. Terms, such as "slight", "moderate" and "severe", are not defined in VA regulations. Rather than applying an inflexible formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (1994). Terminology such as "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). The Board will first review the appellant's pertinent medical history. Medical History Service medical records reveal that the appellant developed kidney calcifications in both his left and right kidneys during service. A June 1972 medical treatment entry reported that the examiner recommended a left pyelolithotomy. However, the appellant decided to wait until after discharge to have the procedure. December and January 1972 VA hospital summaries reported that the appellant was hospitalized for complaints of pain. Multiple calculi were diagnosed in December 1972. The examiner attempted extraction of the left ureteral calculi. However, the appellant elected to postpone surgery and was readmitted in January 1972. Left kidney stones were spontaneously passed and an intravenous urogram revealed that his left kidney had regained full function. A small stone remained in the appellant's right kidney, sitting in a dormant position. The examiner opined that it would give no difficulties and the appellant was discharged. A VA examination was conducted in March 1973. The examiner observed mild tenderness at the left costovertebral angle with no urethral discharge and diagnosed a right renal calculus and a history of left urethral calculus. An October 1973 VA hospital summary reported no findings of renal calculus on examination. The appellant was hospitalized in January 1975 for a left retrograde pyelogram and cystoscopy. Intravenous urograms revealed normal kidney function bilaterally with no evidence of calculus. The examiner opined that a stone had passed prior to the appellant's hospital admission and that no further treatment was necessary. He assessed left renal colic following the spontaneous passage of a stone. A June 1979 VA hospital summary reported that the appellant was admitted for complaints of right sided colic for the previous 2 weeks. A flat plate and excretory urogram revealed a right renal pelvis, which opacified normally, and a filling defect at the right ureteral pelvic junction. The appellant was discharged without restrictions. VA outpatient treatment records dated from January 1979 to September 1979 reported that the appellant complained of right sided colic pain for which he claimed he had been admitted to the Toledo Hospital and that he was referred to VA for follow-up treatment. The examiner's impression was of a right renal colic and a history of bilateral renal calculi. VA outpatient treatment records dated from March 1978 to May 1978 reported that the appellant fractured his right hand. No complaints referable to the appellant's kidney disorder were noted. A VA examination was conducted in November 1979. The examiner made no findings referable to the appellant's kidney disorder. A March 1980 VA hospital summary reported that the appellant received a right ureterolithotomy. A right pyelography was performed without incident. The appellant's post-operative course was uneventful. A stone work-up conducted prior to discharge was normal except for one determination of 24 hour uric acid of 837 mgs. The appellant was discharged with instructions to return in 6 weeks for follow-up treatment and to refrain from exertion during this period. An August 1980 VA physician's statement reported that the appellant continued to be unable to work through the end of August 1980. A VA examination was conducted in October 1980. X-rays of the appellant's abdomen revealed a small indistinct focus of calcific density at the lower pole of the right kidney suggestive of a small right renal calculus. No evidence of other significant abnormality or pathology was observed. The examiner diagnosed recurrent right nephrolithiasis. December 1980 and January 1981 hospital summaries were submitted. The appellant was admitted in December 1980 for complaints of a 2 week history of colicky right flank pain radiating to the right testicle with nausea and vomiting. An abdominal x-ray in Toledo had shown a calcification in the region of the right kidney and the appellant was sent for admission. A cystourethroscopy was planned. However, on the scheduled day of the procedure the appellant awoke with nausea and vomiting and the procedure was canceled. The appellant decided not to have the procedure and was discharged. No pain was noted at the time. The appellant was readmitted in January 1981 for follow-up. He was discharged without restriction. VA outpatient treatment records dated from July 1981 to October 1981 reported that the appellant continued to receive treatment for his right hand fracture, but were negative for complaints referable to his kidney disorder. A March 1982 VA hospital summary reported that the appellant received a right pyelolithotomy after he complained of intermittent right flank pain for the previous year and worsening in the last few days. A right pyelolithotomy was performed without difficulty and a single stone was extracted. The appellant did very well postoperatively. He was discharged with a scheduled follow-up in 2 weeks. Private treatment records from St. Vincent Hospital dated from October 1981 to November 1981 reported that the appellant received open reduction, internal K-wire fixation of the distal right small finger metacarpal fracture. A January 1986 VA hospital summary reported that the appellant was hospitalized for complaints of right knee pain. VA outpatient treatment records dated from January 1986 to August 1986 and from November 1988 to January 1990 reported treatment for knee, neck and ear pain, but were negative for complaints regarding the appellant's kidney disorder. Treatment records from the Toledo Hospital dated from September 1989 to December 1989 reported that the appellant received an arthroscopy irrigation debridement and coventry wedge osteotomy on his left tibia. Private medical treatment records from his private physician, Robert L. Kalb, M.D., dated from December 1989 to April 1990 reported treatment after proximal tibia corrective wedge osteotomy for the appellant's knee disorder. VA outpatient treatment records dated from April 1991 to July 1991 reported that the appellant complained of sharp pain in the right flank area radiating to the right testicle. The examiner assessed probable renal colic and probable urolithiasis. A right kidney stone was eventually confirmed and surgical removal was scheduled. A May 1991 VA hospital summary reported that the appellant was admitted May 21,1991 and discharged May 25, 1991 after he received a right retrograde pyelogram and a right 7 French double J stent placement. On admission, the appellant complained of right flank pain for 3 weeks and nausea. Examination revealed a right lower pole kidney stone with narrowing of the proximal ureter. After surgery, the appellant did well without difficulties keeping liquids down. He was discharged with instructions to return in June for extracorporeal shockwave lithotripsy of the right lower pole stone. There were no physical limitations at the time of discharge, although the appellant was to refrain from added salt in his diet. A June 1991 VA hospital summary reported that the appellant was admitted on June 5, 1991 for removal of the right double-J stent with replacement of a new right double-J stent. The old stent had fallen distal to the narrowing of the uteropelvic junction and the lower pole stone had fallen to the ureteral narrowing. Post-operatively, the appellant was feeling much better and tolerating a diet without vomiting. He was discharged on June 8, 1991 with a diet restriction of no salt. Another June 1991 VA hospital summary reported that the appellant was admitted on June 18, 1991 and discharged on June 19, 1991. The appellant underwent intravenous pain medication. He had an ultrasound that showed no hydronephrosis at all. The examiner explained that the appellant's pain was probably due to either his stone and/or the stent, and that nothing could be done until the stone was broken up by extracorporeal shockwave lithotripsy. His discharge condition was reported to be good and his discharge activities were not restricted. The appellant was to be readmitted in July for extracorporeal shockwave lithotripsy. A June 25, 1991 VA hospital summary reported that the appellant was admitted for transfer to another VA facility. He was admitted on June 26, 1991 and discharged on June 29, 1991 after extracorporeal shock wave lithotripsy. On admission, the appellant had a 1 centimeter right renal stone with a right double J stent in place and complained of right flank pain. The appellant tolerated the procedure well and his catheter was removed the night of surgery. At the time of discharge, he was in stable condition. A July 1991 VA post-operative summary reported that a KUB revealed the stone had been adequately fragmented. The appellant was having significant irritative voiding symptoms. The appellant's stent was then removed without difficulty or complications. 1. Entitlement to a temporary and total disability evaluation for a period of hospitalization pursuant to 38 C.F.R. § 4.29 (1994). A temporary total disability rating may be granted for compensation without regard to other provisions of the rating schedule when it is established that a service-connected disability required hospital treatment in a VA medical facility or an approved hospital for a period in excess of 21 days. 38 C.F.R. § 4.29 (1994). The appellant's medical history, in general, has been set out above. On May 21, 1991 he was admitted to a VA hospital for problems attributed to his kidney disorder. As indicated above, he was discharged on May 25, 1991 after a right 7 French double-J stent placement with no physical limitations. The appellant was readmitted on June 5, 1991 for replacement of a new double-J stent, after the original one had fallen. He was discharged on June 8, 1991 with no noted physical limitations, although a no salt diet restriction was indicated. The appellant was again admitted on June 18, 1991 for complaints of pain and discharged the following day. The examiner explained that nothing could be done until the appellant received extracorporeal shockwave lithotripsy to fragment the stone. His discharge activities were not restricted. The appellant did not wait until July for his extracorporeal shockwave lithotripsy, and was admitted on June 25, 1991 to have the procedure. The appellant was discharged on June 29, 1991 in stable condition. No physical limitations were noted. Therefore, after having evaluated the medical record in this case, the Board finds that the appellant was not continuously hospitalized for the statutorily required period of time. The appellant's total hospitalization, which consisted of only 16 days, was not continuous. 2. Entitlement to a temporary total disability evaluation for a period of convalescence pursuant to 38 C.F.R. § 4.30 (1994). A temporary total disability evaluation will be assigned pursuant to 38 C.F.R. § 4.30 (1994), if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence, (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputation, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited), (3) Immobilization by cast, without surgery, of one major joint or more. The appellant is seeking a temporary total disability evaluation based upon a period of convalescence for his hospitalizations. However, the appellant had no physical limitations reported at the time of his hospital discharges. In view of the above, and the lack of objective medical evidence of record to establish that the appellant had severe postoperative residuals, the Board concludes that entitlement to a temporary total disability evaluation is not warranted. 3. Entitlement to an increased rating for nephrolithiasis, currently evaluated as 10 percent disabling. After evaluating the evidence, the Board has concluded that the appellant suffers from nephrolithiasis which is manifested by infrequent exacerbations of pain due to the formation of kidney stones, which resolve once the stones are removed or spontaneously passed. The Board notes, in particular, the lack of complaints or treatment referable to the appellant's kidney disorder prior to his most recent hospitalizations for kidney stone fragmentation in May and June 1991. Prior to his April 1991 complaints of pain, which indicated the necessity of surgical removal due to the development of kidney stones, the appellant had not received treatment for his nephrolithiasis since 1982. The Board believes that such lack of symptomatology and rare exacerbations of the appellant's disorder do not justify the assignment of a disability rating in excess of 10 percent. 38 C.F.R. § 4.115b Diagnostic Codes 7508, 7509 (1994). The appellant's nephrolithiasis has not resulted in frequent attacks of colic, requiring catheter drainage, or recurrent stone formation requiring diet or drug therapy or invasive or non- invasive procedures more than 2 times per year. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim for an increased rating. ORDER A temporary and total disability evaluation for a period of hospitalization is denied. A temporary and total disability evaluation for convalescence is denied. An increased rating for nephrolithiasis is denied. C. P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.