Citation Nr: 0007458 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-08 854A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased (compensable) rating for residuals of a rupture of the right kidney. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The veteran had honorable periods of active service from February 1944 to May 1945 and from October 1950 to February 1952. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The veteran's claim is plausible, and the RO has obtained sufficient evidence for a correct disposition of this claim. 2. The veteran has no current residuals from an in-service rupture of the right kidney. CONCLUSION OF LAW The criteria for a compensable disability rating for residuals of a kidney rupture have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.115, 4.115a, and 4.115b, Diagnostic Code 7599-7502 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the appellant has presented claims which are not implausible when the contentions and the evidence of record are viewed in the light most favorable to such claim. Generally, an allegation that a service- connected disability has increased in severity is sufficient to establish well groundedness. Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). Likewise, the Board is satisfied that all relevant facts have been properly and sufficiently developed, such that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The evidentiary assertions of the veteran are presumed credible for making this determination. In adjudicating well grounded claims, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the clam is in relative balance with the weight of the "negative" evidence against the claim. The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1998). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the RO provided the veteran an appropriate VA examination. There is no indication of additional medical records that the RO did not obtain. Sufficient evidence is of record to properly rate the veteran's service-connected disability. Therefore, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Disability ratings are intended to compensate reductions in earning capacity as a result of a specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1998). For a claim for an increased rating, the primary concern is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The veteran's service-connected disorder is residuals of a rupture of the right kidney. Residuals of a renal rupture do not have a specific diagnostic code. When a veteran is diagnosed with an unlisted condition, it must be rated under a closely related disease or injury where the affected functions, anatomical location, and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). Under current evaluative criteria, which have remained unchanged during the pendency of this claim, the veteran's service-connected disorder is rated analogous to chronic nephritis under Diagnostic Code 7599-7502. Evaluations for chronic nephritis are rated according to the level of renal dysfunction. The current zero percent (noncompensable) disability rating requires renal dysfunction with albumin and casts with a history of acute nephritis; or, noncompensable hypertension under Diagnostic Code 7101. 38 C.F.R. § 4.115a, Ratings of the genitourinary system - dysfunctions, Renal dysfunction (1999). A 30 percent disability rating for renal dysfunction requires constant or recurring albumin 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. Id. A 60 percent disability rating is warranted for renal dysfunction where there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. Id. An 80 percent disability rating is warranted for renal dysfunction where there is persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss or limitation of exertion. Id. A 100 percent disability rating is warranted for renal dysfunction where regular dialysis is required or more than sedentary activity is precluded 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. Id. The use of the word "or" in the above rating criteria provides an independent basis for that particular evaluation rather than an additional requirement. Drosky v. Brown, 10 Vet. App. 251, 255 (1997). The veteran need only prove the existence of any one of those criteria to satisfy the requirement for that particular evaluation. The critical question in this case is whether the veteran currently has any compensable residuals of the rupture of his right kidney while in service. The Board concludes that he does not. No medical professional has rendered an opinion that the veteran currently has residuals of the in-service kidney rupture. The veteran has testified that he has had pain in the right flank for over fifty years, subcostal in the area where he was cement from a bunker while in service. According a March 1998 VA examination, he has had no significant physical restraints except for pain, which occasionally flares up, producing some decreased flexion at the waist. Several VA examinations showed that the abdomen was soft without masses or organomegaly. No flank masses were found. Ultrasound of the kidneys revealed no evidence of obstruction. No renal cyst was found, and there was no hydronephrosis or renal calculus identified. Imaging over the urinary bladder was unremarkable. A VA physician assessed the veteran's September 1998 renal ultrasound as normal. Laboratory data showed that urea nitrogen, creatinine, albumin and alkaline phosphate were all within normal limits. Diagnosis was a history of right kidney trauma and flank pain etiology, perhaps secondary to a neuralgia from previous trauma. In light of the above, the Board cannot conclude that the veteran's current kidney symptoms warrant a higher (compensable) rating. Specifically, the veteran does not exhibit constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under DC 7101, symptoms required for a 30 percent rating under 38 C.F.R. § 4.115a (1999). While there are complaints of pain, it is not shown to be objectively present, and is not shown to cause functional limitations. He has been assigned a 10 percent rating for the right flank pain. Other pain associated with the disorder at issue has not been shown. Further, none of the symptoms required for any of the higher ratings are present. Therefore, the preponderance of the evidence is against assignment of a compensable disability rating for residuals of right renal contusion. Although the Board has considered the veteran's testimony from an August 1998 personal hearing held before the RO that he experiences pain as a result of his disability, an extraschedular evaluation is not warranted, since the evidence does not show that the residuals of the kidney rupture present an unusual or exceptional disability picture. 38 C.F.R. § 3.321(b)(1). Significantly, the veteran's kidney disorder has not required frequent periods of hospitalization. There is no credible, competent evidence indicating a greater degree of functional loss attributable to the kidney disorder than that commensurate with the noncompensable evaluation currently assigned. Therefore, the regular schedular standards adequately compensate the veteran for any adverse industrial impact caused by the residuals of his right kidney rupture. There is no reasonable doubt on this issue that could be resolved in the veteran's favor. ORDER An increased (compensable) rating for residuals of a right kidney rupture is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals