Citation Nr: 0006601 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-15 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to an increased evaluation for residuals of nephrolithotomy (kidney stones), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from March 1951 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). The veteran appealed that rating decision, which denied a claim for an increase for nephrolithotomy scar, which at that time had been assigned a 10 percent evaluation. In the September 1998 rating decision, the RO also indicated that the veteran was in fact service connected for kidney stones as residuals of nephrolithotomy, for which the veteran was "currently compensated in the form of the residual surgical scar." During the course of the appeal, a December 1998 Board decision denied the veteran's claim for an evaluation in excess of 10 percent for the service-connected nephrolithotomy scar; and remanded the case to the RO to address the issue of entitlement to compensation for service connected kidney stones (residuals of nephrolithotomy). Subsequently in a September 1999 rating decision, the RO determined that the overall evaluation for residuals of nephrolithotomy was increased from 10 percent. To effectuate this, the RO assigned a separate 10 percent evaluation for the nephrolithotomy scar; and a separate 10 percent evaluation for other nephrolithotomy residuals (the kidney stones). There is no indication that the veteran has withdrawn his appeal for an increased rating for his service- connected nephrolithotomy residuals (the kidney stones) not associated to the scar residuals. On a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law. Therefore, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue before the Board is entitlement to a rating in excess of 10 percent for residuals of nephrolithotomy (kidney stones). FINDINGS OF FACT 1. All relevant evidence for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's residuals of nephrolithotomy (kidney stones) is not manifested by more than occasional attacks of colic; there is no infection, and catheter drainage is not required as a result of this disability CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the veteran's service-connected residuals of nephrolithotomy (kidney stones) have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.115, Diagnostic Codes 7508, 7509 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran asserts that residuals of nephrolithotomy (kidney stones) is worse than the currently assigned evaluation reflects. He thereby claims entitlement to a higher evaluation. As a preliminary matter, the Board finds that the veteran's claim is plausible and, thus, well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability is a well-grounded claim). The Board is also satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran has been provided recent VA examinations to evaluate his residuals of nephrolithotomy (kidney stones), and various treatment records have been obtained. There is no indication of any additional pertinent records that have not been obtained. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records as well as all other evidence of record pertaining to the history of his residuals of nephrolithotomy (kidney stones). The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Under the laws administered by VA, disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider the history of the veteran's injury, as well as the current clinical manifestations of its residuals and the overall effect that the disability has on the earning capacity of the veteran. See 38 C.F.R. § 4.2. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). During a July 1999 VA examination, the veteran reported a history of kidney stones with complaints of recurrent episodes of left back pain. He reported that he passed stones fairly often, and that the last time was about three weeks before the present examination. He described the kidney stones as resembling sand. On further questioning, the veteran indicated that the stones were smaller than a grain of sand and characterized them as flecks of material. The veteran reported that he had never caught, touched, or submitted any of the material for examination. The veteran reported that he underwent private X-ray examination twelve to eighteen months before the present examination and was told that everything was fine. The veteran reported that he had developed voiding dysfunction and had a transurethral resection of the prostate ten years before. He subsequently had a revision of the circumcision with no problems since. He reported that he had had sexual dysfunction for a long while, which he attributed to his nonservice-connected diabetes mellitus. The veteran complained of having no energy and being very weak, but having a fair appetite with stable weight. He reported voiding only twice during the day, but that he voided three to four times at night. He complained of peripheral edema, which the examiner noted could account for night time voiding, with mobilization of the fluid. The report noted that the veteran had hesitancy, sometimes waiting as long as five minutes to start urinating. The report noted that there was mild initial dysuria; and no incontinence. The report noted that there was no documented urinary infections, but the veteran reported noticing some burning in his urethra as often as once per week. The report noted that there was no history of acute nephritis; no hospitalizations for urinary tract disease in the past year; no history of malignancy. Treatment had not required catheterization, dilation, or drainage procedures; and no invasive or non-invasive procedures were presently being performed. The report noted that the veteran was disabled because of several non-service connected medical problems. On examination, X-ray examination showed kidneys with no calculi evident. X-ray examination of the kidney, ureter and bladder was normal except for sutures in the right upper quadrant; no stones were seen. Other genitourinary findings regarding genitalia was reported as normal. The report contains impressions of (1) left nephrolithotomy in 1951 with no definite recurrence of stones since that time; (2) episodes of left flank pain with passage of tiny flecks of material; and (3) voiding dysfunction with prior transurethral resection of prostate, believed to be probably due to a diabetic, neurogenic bladder. Nephrolithiasis is to be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; or (3) invasive or non-invasive procedures more than two times/year; which warrants a 30 percent rating. 38 C.F.R. § 4.115b Diagnostic Code 7508 (1999). The veteran's residuals of nephrolithotomy (kidney stones) are evaluated as 10 percent under 38 C.F.R. § 4.115b, Diagnostic Code 7509 (1999), for hydronephrosis. Under that code, hydronephrosis with only an occasional attack of colic, which is not infected and not requiring catheter drainage, warrants a 10 percent rating. Hydronephrosis with frequent attacks of colic, requiring catheter drainage warrants a 20 percent rating. Hydronephrosis with frequent attacks of colic with infection (pyonephrosis), kidney function impaired, warrants a 30 percent rating. Hydronephrosis that is severe is to be rated as renal dysfunction. In this case, VA clinical records do not show treatment for complaints of kidney stones after 1991. During the recent VA examination in July 1999, the veteran complained of recurrent episodes of related left back pain, and frequent passing of stones. However, after further query, the veteran characterized the reported stones as flecks. The examination report also shows that there was no evidence of calculi in the kidney, ureter or bladder; and there were no findings of hydronephrosis, infection or need for catheter. There is also no evidence of kidney function impairment. The impression with respect to kidney stones was that the veteran had had a left nephrolithotomy in 1952 with no definite recurrence of stones since, and that he had had episodes of left flank pain with passage of tiny flecks of material. Based on the foregoing, the Board does not find that there is evidence of hydronephrosis with frequent attacks of colic, requiring catheter drainage, or other symptomatology reflective of the criteria necessary for an increase under Diagnostic Code 7509 or any other pertinent code. The Board has considered the evidence in the record in the context of 38 C.F.R. § 4.7, but concludes that the veteran's disability picture from residuals of nephrolithotomy (kidney stones) does not more closely approximate the criteria for the next higher schedular rating of 20 percent. The record contains no evidence that the disability is manifested by frequent attacks of renal colic or that catheter drainage is required. The Board has reviewed the entire record and finds that the veteran is without urinary tract infection, does not require catheter drainage and has no more than occasional attacks of colic. Accordingly, the preponderance of the evidence is against entitlement to an evaluation in excess of 10 percent for nephrolithotomy (kidney stones). It follows that the provisions of 38 U.S.C.A. § 5107(b) do not otherwise provided a basis for favorable resolution of the veteran's appeal. The Board has determined that there is nothing in the record to indicate that the rating schedule is not adequate for evaluating the veteran's residuals of nephrolithotomy (kidney stones), and that there is no showing that a remand to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of an extra-schedular rating is necessary. See Bagwell v Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 4.3 (1999). ORDER An increased evaluation for hypertension is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals