BVA9507306 DOCKET NO. 92-22 449 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased schedular disability rating for postoperative residuals of bilateral renal calculi, currently rated as 30 percent disabling. 2. Entitlement to a temporary total evaluation based on the veteran's postoperative convalescence pursuant to 38 C.F.R. § 4.30 (1994). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from November 1951 to August 1955. This appeal arises from rating decisions dated in October 1991 and March 1994 of the Louisville, Kentucky, Regional Office (RO). In October 1991, the RO confirmed a 10 percent schedular rating for the veteran's service-connected post-operative residuals of kidney surgery and recurrent renal calculi, and denied entitlement to a temporary total convalescence rating for this disability. The Board of Veterans' Appeals (Board) remanded the case for additional evidentiary development. While on remand, the RO granted entitlement to a 30 percent schedular rating for the veteran's renal disorder in March 1994, an evaluation which the veteran continues to appeal. The 30 percent disability evaluation was made effective the date of the veteran's claim. The claims folder was thereafter returned and docketed at the Board in December 1994, and is now ready for appellate review and consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his service-connected postoperative residuals of bilateral renal calculi warrant a schedular rating in excess of the 30 percent evaluation currently in effect. He avers that he has suffered from periodic infections and recurrent development of stones in both kidneys since service, and that he experiences consistent flank pain and urinary problems. He also appeals the RO's denial of a temporary total schedular rating for this condition, based upon a period of convalescence required after he underwent outpatient surgical procedures to remove renal calculi from his right kidney in April and May 1991. He contends that a surgical procedure in 1978 for similar calculus formation necessitated a two-month period of convalescence, for which he was awarded a temporary total rating. 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 a schedular disability rating in excess of 30 percent for the postoperative residuals of bilateral renal calculi is not warranted. Moreover, upon review of the record, we conclude that the preponderance of the evidence is against a grant of a temporary total rating based upon postoperative convalescence pursuant to 38 C.F.R. § 4.30 (1994). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In February 1956, the RO granted service connection for the postoperative residuals of a renal disorder; this condition is currently evaluated as 30 percent disabling. 3. The veteran's post-operative renal disorder is manifested by frequent attacks of colic with infection and recurrent bilateral renal calculi with accompanying flank pain. These manifestations more nearly approximate the diagnostic criteria for a 30 percent schedular rating. 4. The outpatient surgical procedures performed on April 23, April 30, and May 6, 1991, did not necessitate a postoperative convalescence period of at least one month. CONCLUSIONS OF LAW 1. A schedular disability rating in excess of 30 percent is not warranted for the veteran's postoperative residuals of bilateral renal calculi. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.115a, Part 4, Diagnostic Code 7509 (1994). 2. A temporary total convalescence rating for a period following the veteran's April and May 1991 outpatient surgical procedures for his service-connected kidney condition is not warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. I. Increased Rating The veteran's original claim for benefits was received at the RO in August 1955. Service connection for "Right renal P.O. scar, healed" was granted in a February 1956 rating decision, and a noncompensable schedular disability rating was assigned effective from August 25, 1955. In June 1979, the veteran was granted a temporary total convalescence rating from December 1, 1978, to January 31, 1979, with the noncompensable rating to be re- effectuated as of February 1, 1979. The RO granted a 10 percent evaluation for the veteran's renal condition in January 1985, with an effective date of September 5, 1984. This 10 percent rating was subsequently maintained by the RO in rating decisions dated in October 1985, September 1986, and March 1987. The Board also confirmed this 10 percent rating in a November 1987 decision. In October 1991, the RO again maintained the veteran's 10 percent award, from which he thereafter filed an appeal. Upon remand of the case by the Board, the RO granted an increased rating of 30 percent, effective from May 24, 1991. The veteran continued his appeal for a higher rating. The veteran's renal condition is evaluated pursuant to 38 C.F.R. Part 4, Diagnostic Code 7509 (1994), which states that a kidney disorder manifested by frequent attacks of colic with infections, as well as impaired kidney functioning, will be granted a 30 percent disability rating. Where manifestations are more severe, ratings must be made pursuant to the evaluation criteria outlined for renal dysfunction at 38 C.F.R. § 4.115a (1994). In cases where there is constant albuminuria with some edema; or a definite decrease in kidney function; or the presence of hypertension which is at least 40 percent disabling under diagnostic code 7101, a 60 percent disability rating will be awarded. Persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, will warrant an 80 percent schedular evaluation. A 100 percent disability is demonstrated by a kidney condition requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN 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 (1994). A 40 percent disability for hypertension is shown by a diastolic pressure predominantly 120 or more and moderately severe symptoms. 38 C.F.R. Part 4, Diagnostic Code 7101 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). In support of his request for an increased schedular disability rating, the veteran submitted copies of private medical records dated in April and May 1991 from The Medical Center at Bowling Green. He was admitted to this facility in late-April for severe right flank pain, typical of right ureteral colic. The veteran's blood pressure was 150/90. He gave a "recent" history of having spontaneously passed a kidney stone of significant size. A urinalysis found a random sugar of 144, but was otherwise "essentially normal." X-rays found the presence of a three to four millimeter stone in the proximal ureter. A stent was placed in the ureter and several days later he underwent electrocorporeal shockwave lithotripsy (ESWL) at the Greenview Hospital to break the stone into fragments. A May 6 follow-up report indicates that this procedure was successful in fragmenting the stone, parts of which had been passed by the veteran. He had no further complaints of right flank pain and the stent was removed. This report noted a blood pressure reading of 160/100. The veteran was afforded a Department of Veterans Affairs (VA) examination in February 1992. He gave a history of invasive surgery to remove a right renal calculi during service, with numerous subsequent episodes of colic since that time, occurring approximately every two years. All episodes had been on the right side except for one episode in 1975. He had required surgical procedures for episodes in 1981 and 1991, but all other stones had been passed spontaneously. He denied any pertinent symptomatology between episodes. Upon examination, the urinalysis did not indicate the presence of red blood cells. A partial study completed in 1986 demonstrated bilateral renal function, but this was noted to have been incomplete. The examiner opined that the veteran "probably" did not have a kidney stone at the time of examination, in light of the absence of blood in the urine, nor was there evidence of a urinary tract infection. The frequency of colic attacks was noted as approximately every two years. The veteran underwent another VA examination in March 1992. A similar medical history to that noted in the February 1992 examination was again noted. Urinalysis showed an essentially negative microscopic examination. BUN was 9 and serum creatinine was 0.9. An x-ray indicated the presence of a left kidney stone measuring approximately 2 millimeters. The evaluation found that colic attacks occurred with a frequency of approximately every two years. There was no evidence of an active urinary infection at the time, nor were catheter drains or other therapeutic appliances required. Treatment records were received from the VA Medical Center (VAMC) in Nashville, Tennessee, dating from September 1991 to December 1993, as well as a hospital report dated in April 1993. These records indicate that the veteran was treated for recurrent renal calculi in March and April 1992, April 1993, and July and August 1993. He was admitted for outpatient extraction of one of these stones, located in the left kidney, in April 1993. These records also include numerous urinalysis reports dated in March, July, and September 1992, as well as in March, April, May, July, and August 1993. The highest BUN evaluation was 16mg%, measured in July 1993, while the highest creatinine measurement was 1mg%, noted both in March 1992 and in August 1993. The presence of albuminuria was not indicated. A VA renal examination was performed in March 1994, at which time the veteran noted an extensive history of stone formation, approximately 25 to 30 episodes, during his lifetime. He also indicated that most of these stones had been passed spontaneously, although he had undergone medical procedures for stone removal in 1952, May 1991, and April 1993. In recent years, he had undergone extensive metabolic evaluations to determine the cause of his stone formation syndrome. He was taking prescription medications which increased his output of urine so as to prevent further calculus formation. He had not experienced any recurrence of his renal condition for approximately ten months. Objective examination found that the veteran's urine was normal, with no acute traces of blood, indicating that there was probably no active stone formation occurring at the time. A history of significant, almost yearly episodes, of renal colic were also noted. The diagnosis was "recurrent calcium oxalate nephrolithiasis secondary to hypercalcinuria." Additional VA treatment records from the Nashville VAMC, dated from March to June 1994, repeatedly note a history of renal calculi formation, but no active symptomatology. A March 1994 report indicates that the veteran's blood pressure was 135/90, and an April record noted a blood pressure of 128/72. He specifically denied the presence of any flank pain, hematuria, or "gravel passage." Upon review of the record, we find that the evidence definitely supports the 30 percent rating which is currently in effect for his bilateral renal condition. The VA treatment and examination reports compiled from 1991 to 1994 indicate that he suffers from attacks of renal colic, accompanied by infections, on a yearly basis, and sometimes even more frequently. Moreover, his tendency towards hypercalcinuria results in the recurrent formation of renal stone, often causing disabling symptoms such as severe flank pain and fever. The evidence presented does not, however, present a disability picture which more nearly approximates the criteria for a schedular rating in excess of 30 percent. First, it is clear from the numerous urinalysis results noted in the VA treatment records that the veteran's BUN and creatinine measurements do not approach the levels described for the award of either an 80 percent or 100 percent rating as outlined by 38 C.F.R. § 4.115a (1994). Moreover, the VA examination reports demonstrate that the veteran's health is generally good when he is not experiencing his attacks of renal colic and calculi formation. There is no evidence that he suffers from persistent lethargy, weakness, anorexia, weight loss, or any other limitation of function. Moreover, there is no evidence that the veteran suffers from constant albuminuria accompanied by edema or a definite decrease in kidney functioning. His urinalysis results have consistently indicated that his kidney functions remain normal, and this was confirmed by his most recent VA examination in March 1994. Although the veteran does appear to suffer from some level of hypertension, which was termed as "controlled" by a VA physician in 1994, his highest diastolic level measured in the past five years was 100, found in May 1991. Thus the presence of hypertension would not be ratable at a level of at least 40 percent. 38 C.F.R. Part 4, Diagnostic Code 7101 (1994). We conclude, therefore, that the veteran's symptomatology associated with a bilateral renal condition more nearly approximates the criteria for a 30 percent disability rating. Although we do not question the disabling nature of the veteran's manifestations, particularly during periods of active stone formation, his symptoms currently do not arise to the level of a 60 percent disability under the pertinent rating criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.115a, Part 4, 7509 (1994). II. Temporary Total Convalescence Rating The veteran contends that he is entitled to a temporary total evaluation for a period of convalescence after he underwent outpatient procedures for removal of renal calculi, associated with his service-connected disability, in April and May 1991. A temporary total convalescence rating will be assigned when it is established that hospital treatment for a service-connected disability resulted in surgery necessitating a least one month of post-hospital convalescence; or required surgery, resulting in severe postoperative residuals such as incomplete healed surgical wounds, therapeutic immobilization of one major joint or more, the necessity for confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by case, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a) (1),(2), and (3) (1994). On April 23, 1991, the veteran presented to the emergency room at The Medical Center at Bowling Green complaining of severe pain his right flank, thought to be most typical of right ureteral colic. As numerous injections of analgesics produced no relief, he was admitted into the hospital due to nausea and persistent pain. His admitting diagnoses were right renal colic and hypertension. X-ray views of the kidneys, ureter, and bladder indicated the presence of a stone measuring approximately three to four millimeters located in the proximal ureter. The veteran then underwent a cytoscopy for placement of a stent, and a subsequent course of ESWL for fragmentation of the stone was scheduled for April 30. The veteran was discharged from the hospital on April 25, with a course of medications and instructions on limiting his activity. He thereafter returned for his treatment with ESWL on April 30, which was again accomplished on an outpatient basis. On May 6, 1991, he was afforded follow-up treatment, to include an outpatient procedure to remove the stent. Upon examination, the ESWL treatment was considered to be successful, inasmuch as the veteran had already passed several stone fragments, and it appeared that the stone had been completely fragmented. He appeared to be in no distress, and did not seem to be acutely or chronically ill. Under local anesthetic, the stent was removed and the veteran was discharged in good condition later that day. Upon review, we will not dispute that the veteran's outpatient procedures performed in April and May 1991 do arise to the level of "surgery" as noted in the applicable regulation for the award of a convalescent rating. These procedures were not accompanied by any invasive surgical wounds, nor is there any notation in the hospitalization records that these procedures required therapeutic immobilization, body casts, or other "severe postoperative residuals." Thus the issue before is whether these procedures subsequently necessitated at least one month of convalescence. See 38 C.F.R. § 3.40(a)(1) (1994). There is some evidence that for the period from April 25 to May 6, 1991, the veteran did have limitations placed upon his activities, in light of the placement of a stent in his ureteral area to facilitate the removal of the renal calculi. We note, however, that on May 6, approximately one week after he underwent the ESWL procedure to fragment his renal stone, it appears that the veteran's condition was excellent and that the April 30 ESWL treatment was entirely successful. Moreover, the record subsequent to May 6 provides no further medical evidence indicating that he was under any activity restrictions. The May 6 medical examination noted that he was in good health, and that he did not appear to be either acutely or chronically ill. No gross physical abnormalities were found, and he had no appreciable flank tenderness. He was released in good condition just a few hours after the stent was removed. The veteran appears to rely upon a previous temporary total rating awarded by the RO in June 1979, as support for his current claim of a temporary total rating for convalescence. In December 1978, he had several stones removed from his right ureter under general anesthesia. Follow-up treatment in late January 1979 indicated that the veteran was completely recovered from this procedure. He was awarded a temporary total convalescence rating for the period from December 1, 1978, to January 31, 1979. We remind the veteran, however, that these claims are based on separate facts, different records, and different medical circumstances. The more recent surgical procedures were performed under local anesthesia on an outpatient basis, rather than under general anesthesia during hospitalization. More importantly, however, the medical records submitted indicate that the veteran appeared to be well on his way to a complete recovery by May 6, 1991, when his stent was removed. This removal procedure was performed and the veteran was released on the same day, with no evidence of any complications or post-operative residuals. Thus, even though we have acknowledged that the veteran underwent "surgery" for his service-connected kidney condition, the evidence does not establish that his treatment and convalescence had a duration of at least one month. The veteran's period of convalescence could have begun no sooner than April 23, 1991, when he was first hospitalized and treated for severe flank pain. Furthermore, there is no medical evidence that supports a finding that this period of convalescence continued subsequent to May 6, 1991, approximately two weeks later. The preponderance of the evidence is, therefore, against the veteran's claim that his outpatient surgical procedures to treat a renal calculi necessitated a convalescence period of at least one month. As no relative balance of positive and negative evidence has been presented, the doctrine of benefit of the doubt does not apply. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1994). ORDER Entitlement to a schedular disability rating in excess of 30 percent for the service-connected postoperative residuals of bilateral renal calculi is denied. Entitlement to a temporary total convalescence rating, for a period following the veteran's outpatient surgical procedures in April and May 1991 is denied. BETTINA S. CALLAWAY 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.