BVA9506042 DOCKET NO. 92-55 627 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for right pyelonephritis with postoperative scar, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from August 1959 to September 1963. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 1990 rating decision of the Regional Office (RO) which denied the veteran's claim of entitlement to an increased rating for pyelonephritis with post- operative scar. Following a hearing at the RO in January 1991, the hearing officer granted service connection for hypertension as secondary to the service-connected kidney disability. This case was previously before the Board in September 1992, at which time it was remanded for additional development. The case is again before the Board for appellate consideration. In a statement dated in August 1994, the veteran submitted a claim for service connection for a deformed 12th rib secondary to his kidney disability. Since this matter was not developed or certified for appeal, it is referred to the RO for appropriate action. REMAND The service medical records disclose that the veteran was hospitalized in December 1960 and an appendectomy was performed. Exploration of the abdomen at the same time showed a small cyst in the hilum of the right kidney and a questionable hydro-ureter. An intravenous pyelogram and right retrograde pyelogram revealed a right hydronephrotic kidney. Cystoscopy and retrograde studies showed a fairly advanced ureteropelvic obstruction with secondary hydronephrosis on the right. He was again hospitalized in February 1961, and a right pyeloplasty was performed. An extrinsic band of adhesions and vessels was found and this was lysed and then the pelvis drained normally. In March 1963, the veteran reported that since the surgery, he had experienced occasional sharp pain in the right flank, radiating to the right lower quadrant. He was referred to the urology clinic in July 1963 with symptoms of swelling and sharp pain with strain or exercise. The intravenous pyelograms were reviewed and it was noted that they showed good surgical result with no hydronephrosis and good emptying. The impression was that the pain seemed related to the scar and surgery, not to an obstruction. Following another evaluation in the urology clinic in August 1963, it was again noted that the pain was not of renal origin, and was most likely secondary to scar formation. The veteran was hospitalized in September 1963. It was noted that he had not experienced any episodes of colic since the surgery, but now complained of a constant deep, dull aching pain in the right flank. Infections had not been a problem. He denied dysuria, hematuria, urgency or frequency. An examination of the flanks and abdomen revealed a right flank incisional scar and a McBurney's incisional scar. There was some hyperesthesia and paresthesia slightly distal from the inferior end of the right flank scar. The veteran was examined by the Department of Veterans Affairs (VA) in February 1964. He complained of pain in his right side, nocturia and discomfort in the old operative site. A urinalysis was negative for albumin. The diagnoses were scar, right pyelonephritis and left renal hypertrophy. Based on these findings, the RO, by rating action of February 1964, granted service connection for right pyelonephritis, with postoperative scar. A 10 percent rating was assigned pursuant to the provisions of Diagnostic Codes 7504 and 7509 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. Under the criteria in effect at that time, right pyelonephritis, where mild, with only an occasional attack of colic, not infected and not requiring catheter drainage, warrant a 10 percent evaluation. A 20 percent evaluation required moderate hydronephrosis with frequent attacks of colic, requiring catheter drainage. Code 7504-7509. Based upon VA examinations in January 1967 and again in January 1969, the RO continued the 10 percent evaluation for right pyelonephritis. In June 1990 the veteran requested an increased rating, stating that his right kidney no longer function and that he had high blood pressure related to the kidney disorder. On VA examination in July 1990, the veteran reported that hypertension had been identified on examination in 1986 when he began working for the U.S. Army and that he was unable to run or walk fast due to pain on his right side. The examiner indicated that the veteran's blood pressure in 1986 had been 220/118 but had since been controlled on medications. The diagnoses included "kidney surgery scar =) on running & walking fast." Under the criteria which became effective on January 18, 1994, chronic pyelonephritis will be rated as renal dysfunction or urinary tract infection, whichever is predominant. Code 7504 (1994). A 30 percent rating may be assigned for the veteran's renal condition if there is slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 10 percent evaluation is assignable for hypertension when the diastolic pressure is predominantly 100 or more, or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more. The veteran's hypertension is apparently now well-controlled on medication. The record does not show a history of diastolic blood pressure predominantly 100 or more, as would be required to assign a compensable rating for hypertension. However, no attempt has been made to obtain the medical records for the period from 1986 to 1990. These records, particularly the records for 1986 and 1987 may well show a history of diastolic blood pressure predominantly 100 or more. On examination in October 1992, the veteran again repeated his complaint of pain in the right lower quadrant and again indicated that he was unable to run, walk fast, or do any strenuous exercise. He pointed out that medial reports indicated that these problems may be due to a post-operative scar. As the veteran has noted, the record does indeed indicate that he may have a painful post-operative scar. If so, the veteran may be entitled to a separate compensable rating under 38 C.F.R. Part 4, Code 7804. While clinical findings at the time of the October 1992 examination included an old, well-healed surgical scar over the right flank, the examiner did not comment on the veteran's complaints or specifically state whether the scar was tender or painful. Under the present circumstances, the Board finds that additional development of the evidence is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should request the veteran to identify all sources of medical treatment for kidney problems and hypertension dated from 1986 to the present. The RO should obtain copies of all treatment records identified by the veteran, to include copies of all treatment records identified by the veteran at the time of the July 1990 VA examination, i.e., records of examination and treatment beginning in January 1986 in connection with his employment with the U.S. Army. 2. The veteran should then be afforded an examination by a specialist in urology to determine the severity of all post- operative residuals of right pyeloplasty. The examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. The examination should include blood pressure readings and all appropriate diagnostic testing, laboratory studies or X-rays. The examiner must be provided the claims folder. Based upon review of pertinent data in the claims folder as well as symptoms and findings at the time of examination, the examiner should identify all manifestations which may be attributable to right pyeloplasty, and specify the degree to which the veteran's right kidney is functioning. The examiner should specifically rule in or out the presence of edema and identify any impairment, including tenderness or pain, attributable to the surgical scar. 3. Thereafter, the RO should adjudicate the veteran's claim in light of the additional evidence. The rating decision should reflect consideration of all potentially applicable criteria, to include consideration of the veteran's potential entitlement to a separate rating for a post-operative scar and the applicability of 38 C.F.R. § 3.321(b)(1). If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites the applicable legal provisions and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. GARY L. GICK 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 deter- mination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).