Citation Nr: 0022381 Decision Date: 08/24/00 Archive Date: 08/25/00 DOCKET NO. 98-03 563A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hepatitis secondary to service-connected glomerulonephritis with Goodpasture's syndrome. 2. Entitlement to an increased evaluation for glomerulonephritis with Goodpasture's syndrome, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from April to July 1976 and from August 1979 to March 1980. This case came before the Board of Veterans' Appeals (Board) on appeal of 1997 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran indicated in a May 1999 statement that he wished to obtain increased evaluations and a total disability rating based on unemployability due to service-connected disabilities. He stated that his service-connected "disability" had increased in severity. In June 1999, the RO sent him a letter pointing out that the issue of entitlement to an increased evaluation for glomerulonephritis with Goodpasture's syndrome was on appeal and that he was also service connected for pulmonary hemorrhage with recurrent hemoptysis. The RO requested the veteran to clarify whether he was also seeking an increased evaluation for the pulmonary hemorrhage with recurrent hemoptysis. The RO also provided him with the form to claim entitlement to a total rating based on unemployability and requested him to complete and return the form. No response was received from the veteran. Similarly, when a letter was sent by the RO to the veteran in March 2000 seeking clarification as to whether he intended to apply for service connection for a seizure disorder, no response was received. Therefore, no further action was taken by the RO on the issues of entitlement to service connection for a seizure disorder, entitlement to a total disability rating based on unemployability, and entitlement to an increased evaluation for service-connected lung disability. FINDINGS OF FACT 1. The veteran's claim for service connection for hepatitis on a secondary basis is plausible. 3. The evidence does not show constant albuminuria with edema, definite decrease in kidney function; the veteran's systolic blood pressure has not exceeded 160 and his diastolic blood pressure has not exceeded 100. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for hepatitis on a secondary basis is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an evaluation in excess of 30 percent for glomerulonephritis with Goodpasture's syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.104, Diagnostic Code 7101, §§ 4.115a, 4.115b, Diagnostic Code 7536 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection is granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (1999). As a preliminary matter, the Board must determine whether the appellant has submitted evidence of a well-grounded. If he has not, his claim must fail, and VA is not obligated to assist him in the development of the claim. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. The initial notation of hepatitis on file is in VA hospital records dated in September 1982. According to a June 2000 report from Craig N. Bash, M.D., who reviewed the veteran's claims file, the veteran's hepatitis is secondary to his veteran's service-connected Goodpasture's disease. Consequently, there is medical evidence of a causal connection between the veteran's service-connected glomerulonephritis with Goodpasture's syndrome and hepatitis, which establishes that the veteran's claim for secondary service-connection for hepatitis is plausible and thus well grounded. Increased Rating Initially the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991); that is, he has presented a claim for an increased rating for glomerulonephritis with Goodpasture's syndrome that is plausible. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Evidence on file indicates that the veteran was notified on September 9, 1999, that an examination of his service-connected glomerulonephritis with Goodpasture's syndrome had been scheduled for September 20, 1999. The veteran, without explanation, failed to appear for the examination. In addition, he has not requested that the VA examination be rescheduled. The Board accordingly finds that the duty to assist him, as mandated by § 5107(a), is satisfied, and the issue will be decided on the evidence of record. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Disability evaluations are determined by the application of a schedule of ratings that are based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. VA outpatient records from September 1990 to April 1998 are on file. Laboratory reports dated in January 1996 reveal that BUN was 22 mg/dl (milligrams per deciliter), with a normal reference range from 5 to 24, and creatinine was 1.3 mg/dl, with a normal reference range from 0.7 to 1.3, in January 1996. Blood pressure readings in January, July, and December 1996 were 118/90, 120/90, 108/80, and 110/78. The veteran complained of severe, intermittent right-sided back pain in August 1996. An August 1996 renal echogram showed two hypoechoic areas involving the superior pole of the left kidney, which were thought to represent solid lesions; a CT scan of the abdomen in August 1996 did not reveal any evidence of abnormal masses involving the kidneys. Blood pressure readings taken from May to November 1997 were 124/80 or lower. BUN was 34 and creatinine was 1.4 in August 1997. Blood pressure readings from July to November 1998 were 142 or lower systolic and 88 or lower diastolic. The results of laboratory tests in September 1998 included BUN of 29 and creatinine of 1.6. Laboratory tests in November 1998 showed a negative urinalysis; separate evaluations in November 1998 revealed BUN of 24 and 30, creatinine of 1.4, and albumin of 4.1 and 4.7 g/dl, with a reference range of 3.5 g/dl to 5.5. VA examinations were conducted in April 1998. The veteran complained on infectious disease evaluation of weekly hemoptysis, exertional fatigue, and daily dysuria. The veteran's weight was 198 pounds and stable. Nutrition was excellent, and he appeared healthy. His abdomen was nontender. The diagnoses were Goodpasture's syndrome and renal insufficiency with proteinuria. On a genitourinary addendum, the veteran did not note any lethargy but did indicate that he had occasional weakness and that he became fatigued when physically exerting himself. He noted dysuria with proteinuria on essentially a daily basis. He did not have recurrent urinary tract infections. Laboratory tests revealed BUN of 40 and creatinine of 1.7. The veteran testified at a personal hearing at the RO in October 1998 that he had a swollen kidney, infections, pain on urination, protein and blood cells in the urine, inflammation of the kidneys, and got tired easily. The veteran was hospitalized at a VA medical center in November 1998 with a history of alcohol and opiate dependence. The diagnoses included a history of Goodpasture's syndrome. According to the June 2000 medical report from Dr. Bash, who reviewed the record but did not examine the veteran, the record showed a constant, slowly progressive decline in renal function, with creatinine levels going from 1.1 in 1979 to 1.7 in 1998. Dr. Bash noted that the increases in creatinine were very significant and indicated a relative decrease in kidney function due to Goodpasture's disease. Under 38 C.F.R. § 4.115, Diagnostic Code 7536, the veteran's glomerulonephritis with Goodpasture's syndrome is rated and evaluated as a renal dysfunction. When there is albumin constant or recurring 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, a 30 percent rating is warranted. A 60 percent evaluation is warranted when there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. 38 C.F.R. § 4.115b, Diagnostic Code 7536. Hypertension is evaluated under Diagnostic Code 7101. The Board notes that effective January 12, 1998, VA revised the criteria for diagnosing and evaluating cardiovascular disabilities. 62 Fed. Reg. 65207-65224 (1997). In Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991), the Court held that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. Under the former criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997), a 10 percent evaluation is assigned for hypertension when diastolic blood pressure is predominantly 100 or more; a 20 percent evaluation is warranted for hypertension when diastolic pressure is predominantly 110 or more with definite symptoms; a 40 percent evaluation is warranted for hypertension when diastolic pressure is predominantly 120 or more and there are moderately severe symptoms. Under the criteria effective January 12, 1998, a 10 percent evaluation is assigned for hypertension when diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more; a 20 percent evaluation is warranted for hypertension when diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more; a 40 percent evaluation is warranted for hypertension when diastolic pressure is predominantly 120 or more. When examined by VA in April 1998, the veteran's only relevant complaints were pain on urination and frequent proteinuria. On examination in April 1998, the veteran's weight was stable, his abdomen was nontender, nutrition was excellent, and he appeared healthy. Although it was noted by Dr. Bash in June 2000, based on a review of the record, that there has been a progressive increase in the veteran's creatinine level to 1.7, the Board notes that the most recent laboratory findings on file, the two tests in November 1998, show creatinine of 1.4, which was considered under the noted reference range to be within normal limits. BUN in November 1998 was within normal limits at 24 and subsequently elevated at 30. A urinalysis in November 1998 was within normal limits. Additionally, laboratory tests in November 1998 revealed albumin within normal limits. Blood pressure readings noted above are all 160 or lower systolic and 100 or lower diastolic. The above evidence reveals that, while the veteran does have kidney disability significant enough to warrant a 30 percent evaluation, the clinical evidence does not show constant albuminuria, hypertension warranting a compensable evaluation, or a definite decrease in kidney function. Therefore, the evidence shows that the veteran's disability does not approximate the criteria for a rating in excess of 30 percent. 38 C.F.R. § 4.7. Consequently, an increased rating must be denied. ORDER The Board having determined that the claim of entitlement to secondary service connection for hepatitis is well grounded, the appeal is granted to this extent. An increased evaluation for glomerulonephritis with Goodpasture's syndrome is denied. REMAND Because the claim of entitlement to secondary service connection for hepatitis is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although the evidence noted above is sufficient to establish that the veteran's service-connection claim is plausible, the Board has not found the evidence of record to be adequate to establish the veteran's entitlement to service connection for hepatitis. In this regard, the Board notes that VA hospital records in September 1982, when hepatitis was first diagnosed, do not indicate that the veteran's hepatitis was related to his service-connected kidney disability, because the evidence cited by Dr. Bash in support of his opinion relies primarily on medical history rather than contemporaneous medical findings, and because there is no recent medical evidence of a current disability due to hepatitis B or C. In light of the above, additional development is needed prior to final adjudication. Consequently, this case is REMANDED to the RO for the following actions: 1. The veteran should be requested to provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who may possess additional records pertinent to his claim for service connection for hepatitis. After obtaining any necessary consent forms for the release of the veteran's private medical records, the RO should obtain, and associate with the file, all records noted by the veteran that are not currently on file. 2. When the above record development has been completed, the veteran should be afforded a VA examination by a physician with appropriate expertise to determine the nature and etiology of any current residuals of hepatitis. The claims file, including a copy of this REMAND, must be made available to the examiner for proper review of the medical history. The examination report is to reflect that such a review of the claims file was made. All necessary tests and studies should be conducted and all findings should be reported in detail. If the veteran is found to have residuals of hepatitis, the examiner should provide an opinion, in light of Dr. Bash's report, concerning whether it is at least as likely as not that the disability was caused or chronically worsened by his service-connected glomerulonephritis with Goodpasture's syndrome, to include prior treatment for glomerulonephritis with Goodpasture's syndrome. If the examiner finds that the veteran has disability that was chronically worsened by his glomerulonephritis with Goodpasture's syndrome, the examiner should note what level of disability is attributable to aggravation. The rationale for all opinions expressed should be explained. 3. Thereafter, the RO should review the claims folder and ensure that all developmental actions, including the medical examination and requested opinions, have been conducted and completed in full. The RO should then undertake any other indicated development and should readjudicate the issue of entitlement to secondary service connection for hepatitis . 4. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case and provide the veteran and his representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. SHANE A. DURKIN Member, Board of Veterans' Appeals - 2 -