Citation Nr: 1004348 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 06-02 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for pyelonephritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to a compensable rating for pyelonephritis. During the pendency of the Veteran's appeal, the RO awarded an increased evaluation for service-connected pyelonephritis from noncompensable to 10 percent. The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Thus, the issue remains in appellate status. In May 2009, the Board remanded this issue to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. After completion of the requested development, the case is back before the Board for further appellate action. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. The Veteran's pyelonephritis is manifested by traces of edema in the ankles and hypertension that is minimally compensably disabling. 2. There are no laboratory abnormalities or evidence of decreased kidney function that are associated with the Veteran's pyelonephritis, nor is there evidence of recurrent symptomatic urinary tract infections requiring drainage/frequent hospitalization greater than twice a year, and/or requiring continuous intensive management. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for a rating of 30 percent, but no more, for service-connected pyelonephritis, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.104, 4.115, 4.115a, 4.115b, Diagnostic Code 7504 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in January 2005, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim for an increased evaluation; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The U.S. Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the Veteran that, to substantiate a claim, she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The U.S. Court of Appeals for the Federal Circuit recently reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009). Reviewing the January 2005 correspondence in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a) compliant notice as to her increased rating claim. The Veteran was able to participate effectively in the processing of her claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Therefore, there is no prejudice to the Veteran for the Board to render a decision here. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with her claim. The duties to notify and assist have been met. Legal Criteria Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. 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, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Service connection for pyelonephritis was granted by rating decision dated December 1950. Pyelonephritis is rated as renal dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, code 7504. For renal dysfunction, with albumin and casts with a history of acute nephritis, or hypertension that is non-compensable under diagnostic code 7101, a noncompensable evaluation is warranted. With albumin constant or recurring with hyaline and granular casts or red blood cells, or with transient or slight edema or with hypertension at least 10 percent disabling under diagnostic code 7101, a 30 percent evaluation is warranted. With constant albuminuria with some edema, or with definite decrease in kidney function, or with hypertension at least 40 percent disabling under diagnostic code 7101, a 60 percent rating is warranted. 38 C.F.R. § 4.115a. For urinary tract infection, with long term drug therapy, 1 to 2 hospitalizations per year and/or requiring intermittent intensive management, a 10 percent evaluation is warranted; with recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management, a 30 percent rating is warranted. Id. For hypertensive vascular disease, with diastolic pressure of predominantly 100 or more, or with systolic pressure predominantly 160 or more, or; where continuous medication is shown necessary for the control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a 10 percent rating is assigned. With diastolic pressure predominantly 110 or more, or with systolic pressure predominantly 200 or more, a 20 percent rating is warranted. With diastolic pressure predominantly 120 or more, a 40 percent rating is warranted. 38 C.F.R. § 4.104, Code 7101. Records received from a private physician, Dr. B., show that the Veteran was followed intermittently for dysuria, frequency and urgency from the commencement of the appeal period until the end of 2004. The Veteran saw Dr. B. on three to four occasions per year and was not noted to have active urinary tract infections during these visits. Blood pressure readings were as follows: 168/74 in November 2003; 164/72 in December 2003; 138/50 in January 2004; 142/62 in April 2004; 170/68 in October 2004; and 130/50 in December 2004. The Veteran received a VA genitourinary examination in April 2005; she reported a history of urinary tract infections. The examination was essentially normal and the Veteran was asked to submit some documentation of her history of urinary tract disturbances. VA clinical records dating from 2004 to 2008 show that frequent blood tests and urinalyses were performed during that period of time; however, there were no laboratory abnormalities noted. Further, all clinical genitourinary evaluations were normal. Blood pressure readings during this period of time were as follows: 140/58 in September 2004; 160/68 in August 2005; 144/61 in January 2006; 144/68 in June 2006; 148/65 in January 2007; and 134/56 in July 2007. Throughout this period of time, the Veteran was taking a blood pressure medication. On VA examination in July 2009, the Veteran reported 3 to 4 years of bilateral flank pain, foul smelling urine, frequency and nocturia, with occasional hematuria. She took no medication for these symptoms. She denied a history of recurrent urinary tract infections. On physical examination, the Veteran's blood pressure was 146/59. There was no abdominal or flank tenderness. Bladder and urethral examinations were normal; however, traces of bilateral ankle edema were observed. Urinalysis, including albumin, was normal. On renal ultrasound, the right kidney was normal in size with three simple cysts. The left kidney was noted to be small, with one simple cyst. The bladder showed no abnormalities. The examiner concluded that there was normal kidney function, and diagnosed residuals of pyelonephritis with small left kidney on ultrasound. On review, the Board finds that a 30 percent disability evaluation for pyelonephritis is warranted. As contemplated under 38 C.F.R. § 4.115(a) for renal dysfunction, the Veteran has hypertension that nearly approximates the criteria for a disability evaluation of 10 percent under Diagnostic Code 7101. Several of her systolic blood pressure readings during the appeal period were 160 or higher, despite medication prescribed to control her hypertension. In addition, on VA examination in July 2009, trace amounts of bilateral ankle edema were observed. Because the Veteran has hypertension that closely approximates the criteria for a disability evaluation of 10 percent under Diagnostic Code 7101 and edema that could appropriately be characterized as "transient and slight," the exhibited symptomatology more closely approximates the criteria for a 30 percent disability evaluation for renal dysfunction. See 38 C.F.R. § 4.115(b), Diagnostic Code 7504 (pyelonephritis shall be rated as renal dysfunction or urinary tract infection, whichever is predominant). There is no evidence of laboratory abnormalities, a definite decrease in kidney function, or hypertension that is at least 40 percent disabling, that would entitle the Veteran to a rating greater than 30 percent for renal dysfunction. VA clinical notes dating from 2004 to 2008, as well as the July 2009 VA examination show normal urinalyses and bloodwork. Renal ultrasound in July 2009 showed normal kidney function. There is also no evidence of hypertension with diastolic pressure predominantly 120 or greater that would entitle the Veteran to a rating in excess of 30 percent for renal dysfunction. The Veteran has not required continuous intensive management of urinary tract infections, nor has she been hospitalized for that disorder during the course of her appeal. Private clinical records and VA treatment notes dated from 2003 to 2008 are negative for findings of urinary tract infections; in fact, in VA clinical notes dating from 2004 to 2008, genitourinary evaluations showed no abnormalities. There are no other Diagnostic Codes under 38 C.F.R. § 4.115(b) that are applicable in this matter. Under these circumstances, an evaluation of 30 percent, but no more, for renal dysfunction as a result of pyelonephritis, is warranted. 38 C.F.R. § 4.7. ORDER A disability evaluation of 30 percent, but no higher, for pyelonephritis is allowed, subject to the regulations governing the award of monetary benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs