Citation Nr: 0016074 Decision Date: 06/16/00 Archive Date: 06/22/00 DOCKET NO. 94-41 489A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE The veteran's dissatisfaction with the initial rating assigned following a grant of service connection for renovascular hypertension secondary to partial occlusion of the right renal artery, rated as 30 percent disabling from July 16, 1991, and rated as 60 percent disabling from March 23, 1993. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from November 1988 to July 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1992 rating decision by the Department of Veterans Affairs (VA) Buffalo, New York Regional Office (RO) which granted service connection for renovascular hypertension secondary to partial occlusion of the right renal artery and assigned a 30 percent rating effective July 16, 1991. The Board notes that in a prior August 1998 Board remand decision, the Board notes that the appeal had originated from a February 1994 rating decision which had denied an increased rating for renovascular hypertension secondary to partial occlusion of the right renal artery. However, as pointed out from the veteran's representative in a May 2000 informal hearing presentation, the March 1993 document which was previously accepted as a claim for an increased rating was also received by VA within one year of the notification of the October 1992 rating decision and may be construed as a notice of disagreement as to the initial rating decision. As such, the veteran's appeal stems from the initial rating decision granting service connection. Thus, the issue in appellate status is properly as stated on the front page per the directives of Fenderson v. West, 12 Vet. App 119 (1999). According to Fenderson, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Thus, the Board will consider whether staged ratings are warranted from the effective date of service connection. The Board further notes that while in remand status, the RO, by rating action dated in November 1998, increased the disability evaluation for the veteran's service-connected renal disability from 30 percent to 60 percent, effective from March 23, 1993. The case was then returned to the Board and is now ready for appellate review. FINDINGS OF FACT 1. Effective July 16, 1991 through February 16, 1994, the veteran's renovascular hypertension secondary to partial occlusion of the right renal artery disability was moderately severe with a definite decrease in kidney function and associated moderate hypertension, but was not severe with persistent edema and albuminuria; moderate retention of non- protein nitrogen, creatinine or urea nitrogen; moderately decreased kidney function; and/or moderate cardiac complications. 2. The old and new versions of the rating criteria for renal disease are equally favorable to the veteran. 3. Effective February 17, 1994, the veteran's renovascular hypertension secondary to partial occlusion of the right renal artery disability was moderately severe with a definite decrease in kidney function and associated moderate hypertension, but was not severe with persistent edema and albuminuria; moderate retention of non-protein nitrogen, creatinine or urea nitrogen; moderately decreased kidney function; and/or moderate cardiac complications. 4. Effective February 17, 1994, the veteran's renovascular hypertension secondary to partial occlusion of the right renal artery disability was productive of definite decrease in kidney function, but was not productive of persistent edema and albuminuria with BUN 40 to 80 milligram 0/0; creatinine 4 to 8 milligram 0/0; or generalized poor health characterized consistently by lethargy, weakness, anorexia, weight loss, and/or limitation of exertion. CONCLUSIONS OF LAW The schedular criteria for a rating of 60 percent, but no more, for service-connected renovascular hypertension secondary to partial occlusion of the right renal artery, is warranted from July 16, 1991, to February 16, 1994. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.115(a), Part 4, Code 7502, (effective prior to February 17, 1994). The schedular criteria for a rating in excess of 60 percent, but no more, for service-connected renovascular hypertension secondary to partial occlusion of the right renal artery, from February 17, 1994, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.115(a), 4.115(b), Part 4, Code 7502, (effective prior to and on February 17, 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A review of the veteran's service medical records show that in early 1990 the veteran sustained multiple pulmonary emboli from deep venous thromboses and arterial thrombosis to the right renal artery. This insult resulted in a nonfunctioning right kidney secondary to prolonged ischemia. On his initial post service VA examination in August 1992 the veteran proffered no complaints. He did report a history of embolus to the right kidney and lung without secondary pulmonary hypertension and loss of renal function of the right kidney. He said that he was on Coumadin for a six- month period and now is on high blood pressure medications but not anticoagulants. A renal blood flow study on this occasion was interpreted to reveal a suboptimally functioning left kidney and a small distorted right kidney with very poor function. An echocardiogram and electrocardiogram were interpreted to be normal. The veteran's blood pressure was 134/100, 156/92 and 154/106, sitting, recumbent and standing, respectively. Status post left leg deep venous thrombosis and multiple pulmonary emboli, hypertension and nonfunctional right kidney were the pertinent diagnoses. Service connection for renovascular hypertension secondary to partial occlusion of the right renal artery was established by an October 1992 RO rating action. This disorder was rated 30 percent disabling under Diagnostic Code 7502, effective from July 16, 1991. On VA examination in May 1993 the veteran expressed no present complaints. His blood pressure was 120/86. His heart sounds were normal, lungs were clear and there was no edema. The veteran was noted to be obese and he was advised to lose 40 pounds. It was observed that he already achieved a 30-pound weight loss. Laboratory studies in June 1993 were significant for a noted history of elevated creatinine of 1.5 in September 1992 with present creatinine of 1.4, indicated to be at the upper limit of normal. Private clinical records compiled between September 1992 and September 1993 and received in March 1994, include laboratory studies in September 1992 which disclosed a creatinine of 1.6. Albumin was within the normal reference range. Diastolic blood pressure during this period ranged from a high of 100 to a low of 78. Systolic blood pressure varied from a high of 150 to a low of 130. On a VA hypertension examination in October 1995 the veteran's only subjective complaints were of an occasional prefrontal headache. On physical examination the veteran was noted to be 6 feet 3 inches and to weigh 304 pounds. He was characterized as a well-developed, moderately obese individual in no discomfort. His heart was regular with good tones and no murmurs. The extremities showed no edema or cyanosis. Blood pressure sitting was 124/94, 138/92 lying down, and 140/96 standing. His heart was not enlarged to percussion and the apex beat was not beyond the midclavicular line. Hypertension due to a Goldblatt kidney following an embolus to the right kidney and uncontrolled by medication was the diagnosis. The veteran was hospitalized at a VA medical center in November 1995 for a swollen left calf, which was tender to palpation. He underwent a duplex venogram to rule out deep venous thrombosis. There was no convincing evidence of deep venous thrombosis and he was kept on Heparin and Coumadinezed. A hematology consult was obtained which recommended discontinuation of anticoagulation on day three of his hospitalization in a safe manner. Postphlebitic syndrome was the discharge diagnosis. When examined by VA in June 1996 the veteran was noted to be 6 feet 1 3/4 inches tall and to weigh 321 pounds. His blood pressure was 150/90. His heart was regular with no murmurs. The extremities had good pedal pulses. Laboratory studies disclosed his creatinine to be normal at 1.3. There was no protein in his urine. Urine showed no growth on culture. A venogram of the left lower extremity was reviewed and it was reported that it showed extensive varicosities in the leg and calf and a slight irregularity of the lower portion of the superficial femoral vein which was indicated to be most likely related to the previous episode of deep venous thrombosis. The remaining portion of the superficial femoral vein and common iliac were normal and mild renovascular hypertension secondary to partial occlusion of the right renal artery and postphlebitic syndrome of the left lower extremity, which had resolved and was no longer a problem, were the diagnostic impressions. The right kidney was not seen upon x-ray and it was questioned whether or not it was still in place. In a statement dated in June 1998, Craig N. Bash, M.D., reported that he reviewed the veteran's claims file and it was his opinion that the veteran has a definite decrease in kidney function. He stated that this opinion was based on a renal blood flow study and a venogram in 1992 as well as the veteran's creatinine levels obtained over the last several years. He further stated that the veteran has a nonfunctioning right kidney, which is equivalent to having a loss of use of that kidney and a suboptimal left kidney. He further stated that the veteran's nonfunctional right kidney is equivalent to a 50 percent impairment of kidney function in addition to additional disability caused by his left kidney. On a VA examination in July 1998, the veteran reported that when last evaluated by a kidney specialist six months ago he was told that his kidneys are now functioning normally. The veteran stated that he plays 18 holes of golf twice a week and can climb 8-foot ladders without symptoms. He denied any dysuria or hematuria, palpitations, chest pains or edema. It was observed that laboratory studies done in April 1998 had disclosed creatinine of 1.1 and a BUN (blood urea nitrogen) of 14. The veteran was described as well developed and obese. His heart was regular in rate and rhythm, S1, S2 were normal and there was no thrills or murmurs. Cardiac area of dullness was not enlarged. Blood pressure was 130/90, right arm sitting, 140/96 right arm standing, and 120/80 left arm sitting. The extremities were negative for calf muscle tenderness and palpable or visible distended tortuous veins. There was no active joint swelling or tenderness. Chronic venous insufficiency, status post deep venous thrombosis, left leg, status post pulmonary embolization, mild hypertension and obesity were the diagnoses. Following an essentially normal VA genitourinary examination afforded the veteran in September 1998 no evidence of urologic disease was diagnosed. A subsequent genitourinary examination conducted later that month recorded that the veteran currently complained of lethargy and weakness. On physical examination his blood pressure was 130/80. His heart S1 and S2 were normal with regular rate and rhythm. His extremities showed no cyanosis, clubbing or edema. It was noted that the veteran had a BUN and creatinine of 14 and 1.1 respectively. It was observed by the veteran's examiner that although the veteran's current BUN and creatinine were within normal limits, there is evidence that his left kidney is compensating in a way that may be detrimental due to the damage that occurred to the right kidney. He further noted that there was a definite decrease in the veteran's kidney function. A January 1999 VA renal blood flow study and renogram was interpreted to disclose that the veteran's left kidney is adequately perfused and functioning with evidence of compensatory hypertrophy. The right kidney was found to be very small and contracted with markedly decreased perfusion and function. It was noted that when compared with a previous similar study done in August 1992, no significant interval change in the perfusion or function of both the kidneys was detected. In a letter dated in September 1999, Saleem A. Kahn, M.D., reported that he had seen the veteran in his office in 1997 and again in May of 1999 for hypertension and nonfunctioning right kidney. He noted the veteran's clinical history and that the veteran was voiding good, had no chest pain and no history of cardiac disease. He observed that the veteran on current physical examination weighed 310 pounds and was obese. Blood pressure was 150/78. Heart was regular with no murmur, gallop or rub. The extremities were negative for edema. Dr. Kahn observed that a laboratory workup in August 1999 found creatinine of 1.0 and a BUN of 15. An April 1999 urine study was also reported to be protein negative. Dr. Kahn concluded as a diagnostic impression that the veteran had well controlled renovascular hypertension from his right kidney and that the left kidney was normal with normal renal function. Analysis The Board initially notes that it 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). All relevant facts pertaining to this claim have been developed and no further assistance to the veteran is required to satisfy the VA's duty to assist in the development of the claim as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Further, when 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. The Board notes that during the pendency of the veteran's claim the regulations pertaining to evaluation of the diseases of the genitourinary system were changed. Where a law or regulation changes after a claim has been filed, but before the administrative appeal process has been concluded, the version most favorable to an appellant applies. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new criteria may not be applied earlier than the effective date of the new criteria. VAOGCPREC 3-2000. As such, the Board will review the disability under the old criteria from the effective date of service connection until February 16, 1994, and under both the old and new criteria from February 17, 1994. The Board observes that the RO in its rating action in November 1998 increased the disability evaluation of the veteran's renal disability to 60 percent under the new regulation, finding these regulatory criteria were the most favorable to the veteran. However, the assigned effective date was March 23, 1993, which was prior to the effective date of the changes in the regulation. Nevertheless, in light of the Board's determination below, the Board essentially finds that a 60 percent rating, but no higher, was warranted effective from the effective date of service connection onward. Thus, even though this was improper, it will not be disturbed. However, the Board will not consider the new criteria until the effective date of the changes in the rating criteria which was February 17, 1994. At the outset, the Board notes that consideration must be given to the veteran's overall kidney function. Even if one of his kidneys is totally nonfunctioning, the other kidney may assume kidney function so that the veteran may have overall kidney functioning. However, the Board must be mindful if the functioning of that kidney becomes diminished. The rating criteria addresses overall kidney functioning. Under the old criteria for rating renal dysfunction, a 100 percent rating is assigned when the condition is pronounced; persistent edema and albuminuria; or marked retention of non-protein nitrogen, creatinine or urea nitrogen; with markedly decreased kidney function or severe cardiovascular complications and chronic invalidism. An 80 percent rating is provided where the condition is severe; persistent edema and albuminuria; or moderate retention of non-protein nitrogen, creatinine or urea nitrogen; or moderately decreased kidney function or moderate cardiac complications. A 60 percent is assigned when the condition is moderately severe; constant albuminuria with some edema or definite decrease in kidney function; or associated moderate hypertension. 38 C.F.R. § 4.115(a), Diagnostic Code 7502 (effective prior to February 17, 1994). Under the new rating criteria, renal dysfunction is rated 100 percent when it requires regular dialysis, or precludes more than sedentary activity from one of the following: Persistent edema and albuminuria; or, BUN more than 80 milligram 0/0; or, creatinine more than 8 milligram 0/0; or markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is assigned for persistent edema and albuminuria with BUN 40 to 80 milligram 0/0; or creatinine 4 to 8 milligram 0/0; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent rating is assigned when renal dysfunction is manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under Code 7101. 38 C.F.R. §38 U.S.C.A. §§ 4.115(a), 4.116(a), Diagnostic Code 7502 (effective February 17, 1994). Upon review of the old criteria, prior to February 17, 1994, the Board finds that a 60 percent rating was warranted from the effective date of service connection, July 16, 1991 As noted, in order for a 60 percent rating to be warranted, the condition is moderately severe; constant albuminuria with some edema or definite decrease in kidney function; or associated moderate hypertension. The August 1992 examination showed that the left kidney was suboptimally functioning and his right kidney had very poor function. The veteran's blood pressure was 134/100, 156/92 and 154/106, but his echocardiogram and electrocardiogram were interpreted to be normal. Private clinical records compiled between September 1992 and September 1993 include laboratory studies in September 1992 which disclosed a creatinine of 1.6. Albumin was within the normal reference range. Diastolic blood pressure during this period ranged from a high of 100 to a low of 78. Systolic blood pressure varied from a high of 150 to a low of 130. On his next examination in May 1993, blood pressure was 120/86, and his heart sounds were normal, lungs were clear and there was no edema. Laboratory studies in June 1993 noted history of elevated creatinine of 1.5 in September 1992 with present creatinine of 1.4, indicated to be at the upper limits of normal. The Board notes that while the veteran did not demonstrate constant albuminuria with some edema, the medical evidence did show that his overall kidney functioning was suboptimal and his blood pressure readings were elevated per Diagnostic Code 7101. Affording the veteran all reasonable doubt, the Board finds, therefore, that the criteria for 60 percent was met. However, the criteria for a rating in excess of 60 percent was not met because the medical evidence did not show persistent edema and albuminuria; moderate retention of non- protein nitrogen, creatinine or urea nitrogen (the veteran's creatine was in the upper limits of normal); moderately decreased kidney function; or moderate cardiac complications. As noted, the veteran's left kidney was operating suboptimally, but there is no evidence that overall kidney function was moderately decreased. Likewise, the veteran's blood pressure readings showed slight elevation, but there were no other cardiac complications. Effective February 17, 1994, the Board must consider whether a higher rating is warranted under both the new and old rating criteria. In October 1995 the veteran's only subjective complaints were of an occasional prefrontal headache and he was in no discomfort during the examination. Blood pressure readings were 124/94, 138/92, and 140/96, but his heart showed no abnormalities. The extremities showed no edema. Thereafter, the veteran was hospitalized at a VA medical center in November 1995 for a swollen left calf, which was tender to palpation. Although there was no convincing evidence of deep venous thrombosis, he was discharged with a diagnosis of postphlebitic syndrome. In June 1996, the veteran's blood pressure was 150/90 and his heart was regular with no murmurs. Laboratory studies disclosed his creatinine to be normal at 1.3 and there was no protein in his urine or growth on culture. A venogram of the left lower extremity was reviewed and it was reported that it showed extensive varicosities in the leg and calf and a slight irregularity of the lower portion of the superficial femoral vein which was indicated to be most likely related to the previous episode of deep venous thrombosis (which occurred during service). The remaining portion of the superficial femoral vein and common iliac were normal and mild renovascular hypertension secondary to partial occlusion of the right renal artery and postphlebitic syndrome of the left lower extremity, which had resolved and was no longer a problem, were the diagnostic impressions. The right kidney was clearly nonfunctioning as it was not seen on x-ray. Thus, in sum, the veteran's blood pressure has been stable, but he demonstrated cardiac complications in November 1995 which had resolved by June 1996. His laboratory studies were within the normal range. The veteran did not subjectively complain of generalized poor health. Thereafter, in June 1998, Dr. Bash, reported that the veteran had a definite decrease in kidney function. He stated that this opinion was based on a renal blood flow study and a venogram in 1992 as well as the veteran's creatinine levels obtained over the last several years. He further stated that the veteran has a nonfunctioning right kidney, which is equivalent to having a loss of use of that kidney and a suboptimal left kidney. He further stated that the veteran's nonfunctional right kidney is equivalent to a 50 percent impairment of kidney function in addition to additional disability caused by his left kidney. However, thereafter, in July 1978, the veteran indicated that he was in good health and that he played 18 holes of golf twice a week and could climb 8-foot ladders without symptoms. He denied any dysuria or hematuria, palpitations, chest pains or edema. It was observed that laboratory studies done in April 1998 had disclosed creatinine of 1.1 and a BUN (blood urea nitrogen) of 14. Blood pressure readings were 130/90, 140/96, and 120/80; there were no cardiac abnormalities. The extremities were negative for calf muscle tenderness and palpable or visible distended tortuous veins. There was no active joint swelling or tenderness. On a subsequent examination, the veteran currently complained of lethargy and weakness. On physical examination his blood pressure was 130/80 and his heart was normal. He did not have edema. It was noted that the veteran had a BUN and creatinine of 14 and 1.1 respectively. It was observed by the veteran's examiner that although the veteran's current BUN and creatinine were within normal limits, there was evidence that his left kidney was compensating in a way that might be detrimental due to the damage that occurred to the right kidney. He further noted that there was a definite decrease in the veteran's kidney function. Thereafter, a January 1999 VA renal blood flow study and renogram showed that the veteran's left kidney was adequately perfused and functioning with evidence of compensatory hypertrophy. The right kidney was found to be very small and contracted with markedly decreased perfusion and function. It was noted that there was no significant change since August 1992. In addition, Dr. Kahn reported that the veteran was voiding good, had no chest pain and no history of cardiac disease. Blood pressure was 150/78 and the heart was normal. The extremities were negative for edema. Dr. Kahn observed that a laboratory workup in August 1999 found creatinine of 1.0 and a BUN of 15. An April 1999 urine study was also reported to be protein negative. Dr. Kahn concluded as a diagnostic impression that the veteran had well controlled renovascular hypertension from his right kidney and that the left kidney was normal with normal renal function. In order for a higher rating to be warranted under the old criteria, the medical evidence would have to show persistent edema and albuminuria; or moderate retention of non-protein nitrogen, creatinine or urea nitrogen; or moderately decreased kidney function or moderate cardiac complications. The medical evidence does not show that those criteria are met. Rather, the veteran demonstrated definite decreased kidney function and hypertension consistent with the already assigned 60 percent rating. Under the new criteria, the medical evidence would have to show persistent edema and albuminuria with BUN 40 to 80 milligram 0/0; or creatinine 4 to 8 milligram 0/0; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. These criteria are also not met. While the veteran reported experiencing lethargy and weakness on VA examination in September 1998, objective findings of generalized poor health were not present on this or on any other examination nor did the veteran make such complaints. In fact, the veteran reported in July 1998 that he played golf twice a week and could climb 8-foot ladders without symptoms. In addition, the veteran is obese and has not had recently demonstrated anorexia or weight loss which are two of the symptomatology. The veteran's heart is essentially normal and the veteran's hypertension is essentially well controlled with diastolic pressure generally less than 100. Based on the foregoing clinical data and pertinent schedular criteria, the Board concludes that the level of disability more nearly approximates the criteria for a 60 percent evaluation under both the old and new rating criteria. As the veteran meets the 60 percent rating under either version of the rating criteria and does not meet the criteria for a higher rating under either version of the rating criteria, neither version is considered more favorable to him. Accordingly, the Board concludes that a 60 percent rating, but no higher is warranted under the old criteria from July 16, 1991, the effective date of service connection through February 16, 1994. A rating in excess of 60 percent is not warranted from February 17, 1994. ORDER A 60 percent rating, but no higher, is warranted from the effective date of service connection, July 16, 1991, for renovascular hypertension secondary to partial occlusion of the right renal artery. A rating in excess of 60 percent is not warranted from February 17, 1994. J. CONNOLLY JEVTICH Acting Member, Board of Veterans' Appeals