Citation Nr: 0810881	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  05-00 016A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUE

Entitlement to an evaluation in excess of 60 percent for 
Bartter's Syndrome.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W. Donnelly, Associate Counsel




INTRODUCTION

The veteran served on active duty with the United States Army 
from September 1968 to September 1970.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2004 rating decision by the 
Newark, New Jersey, Regional Office (RO) of the Department of 
Veterans Affairs (VA), which denied entitlement to an 
increased evaluation for Bartter's Syndrome.  

This case was previously before the Board in September 2006.  
The veteran had requested, and was scheduled for, a 
videoconference hearing before a Veterans Law Judge in 
September 2006, but he stated at the time of the hearing that 
he wanted to instead have a hearing before a traveling 
Veterans Law Judge.  The veteran was informed that he would 
be scheduled for a Travel Board hearing the next week at the 
RO, and the case was remanded to the RO for scheduling.  
However, the veteran failed to report for the rescheduled 
Travel Board hearing on September 12, 2006, and despite 
correspondence informing him of the consequences of such and 
the right to reschedule, the veteran has not contacted the 
Board or RO to show good cause for the failure to report or 
to reschedule the examination.  Therefore, the case has been 
returned to the Board for further appellate consideration.

In September 2007, the veteran filed a VA Form 21-2680, 
Examination for Housebound Status or Permanent Need for 
Regular Aid and Attendance.  This claim for entitlement to 
special monthly compensation has not been addressed by the 
RO, and it is referred to the agency of original jurisdiction 
for appropriate action.

The Board notes that the veteran was denied entitlement to a 
total disability evaluation due to individual unemployability 
(TDIU) in a January 2006 decision, but no notice of 
disagreement was received within one year of the denial.  In 
a February 2008 brief, the veteran's representative has again 
raised the issue of TDIU.  This claim is also referred to the 
RO for appropriate action.


FINDING OF FACT

Bartter's Syndrome is currently asymptomatic, with normal BUN 
and creatinine levels and no albuminuria.


CONCLUSION OF LAW

The criteria for entitlement to an evaluation in excess of 60 
percent for Bartter's Syndrome are not met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.159, 4.1, 4.115a, 4.115b, Diagnostic 
Code 7502 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper VCAA notice must inform the claimant of 
any information and evidence not of record that is necessary 
to substantiate the claim.  The veteran should be informed as 
to what portion of the information and evidence VA will seek 
to provide, and what portion of such the claimant is expected 
to provide.  Proper notification must also invite the 
claimant to provide any evidence in his possession that 
pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  This notice must be provided prior to an 
initial unfavorable decision on a claim by the agency of 
original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 
112 (2004).  

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary 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.  Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  Further, if the Diagnostic 
Code under which the claimant is rated 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 (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Vazquez-Flores, supra.   Here, the veteran has 
demonstrated actual knowledge of the applicable rating 
criteria, as demonstrated by his discussion of the signs and 
symptoms of the disease at a hearing before a hearing office 
at the RO in April 2005.  Moreover, VA has developed for 
extensive laboratory results pertinent to the criteria, and 
which the veteran could not have supplied regardless of his 
knowledge of them.

The VCAA duty to notify was satisfied by way of a letter sent 
to the appellant in April 2004 that fully addressed all 
notice elements and was sent prior to the initial AOJ 
decision in this matter.  The letter informed the appellant 
of what evidence was required to substantiate the claim and 
of the appellant's and VA's respective duties for obtaining 
evidence.  The appellant was also asked to submit evidence 
and/or information in her or his possession to the AOJ.

VA additionally has a duty to assist the veteran in the 
development of the claim.  This duty includes assisting the 
veteran in the procurement of service medical records and 
pertinent treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA treatment 
records from VA Medical Center East Orange, to include 
laboratory results from 1996 forward.  The veteran submitted 
a release to obtain records from Dr. RR, but identified her 
as solely treating psychiatric disabilities not relevant to 
the current claim; these records have not been obtained, and 
no prejudice to the veteran results.  The appellant was 
afforded a VA medical examination in July 2004, and he 
testified before a hearing officer at the RO in April 2005.  
As was noted above, he was offered the opportunity to appear 
before a Veterans Law Judge, but failed to report for the 
scheduled hearing.  Significantly, neither the appellant nor 
his or her representative has identified, and the record does 
not otherwise indicate, any additional existing evidence that 
is necessary for a fair adjudication of the claim that has 
not been obtained.  Hence, no further notice or assistance to 
the appellant is required to fulfill VA's duty to assist the 
appellant in the development of the claim.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see 
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).




Evaluation of Bartter's Syndrome

Disability evaluations are determined by the application of 
the facts presented to VA's Schedule for Rating Disabilities 
(Rating Schedule) at 38 C.F.R. Part 4.  The percentage 
ratings contained in the Rating Schedule represent, as far as 
can be practicably determined, the average impairment in 
earning capacity resulting from diseases and injuries 
incurred or aggravated during military service and the 
residual conditions in civilian occupations.  38 U.S.C.A. 
§ 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

In evaluating the severity of a particular disability, it is 
essential to consider its history.  38 C.F.R. § 4.1; Peyton 
v. Derwinski, 1 Vet. App. 282 (1991).  Where there is a 
question as to which of two evaluations shall be applied, the 
higher rating will be assigned if the disability picture more 
nearly approximates the criteria required for that 
evaluation.  Otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.  

Compensation for service-connected injury is limited to those 
claims which show present disability.  Where entitlement to 
compensation has already been established and an increase in 
the disability rating is at issue, the present level of 
disability is of primary importance.  Francisco v. Brown, 
7 Vet. App. 55, 58  (1994).  However, separate ratings may be 
assigned for separate periods of time based on the facts 
found.  This practice is known as "staged" ratings."  
Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. 
Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the 
claim will be granted.  A claim will be denied only if the 
preponderance of the evidence is against the claim.  See 38 
U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 1 Vet. App. 49, 56 (1990). 

Bartter's Syndrome is a disease of the kidneys, and hence is 
rated as analogous to nephritis under Diagnostic Code 7502.  
That code directs that evaluations be assigned according to 
the degree of renal dysfunction.  Albumin and casts with 
history of acute nephritis; or, hypertension non-compensable 
under Diagnostic Code 7101, are assigned a 0 percent rating.  
Constant or recurring albumin with hyaline and granular casts 
or red blood cells; or, transient or slight edema or 
hypertension 10 percent disabling under Diagnostic Code 7101, 
is evaluated as 30 percent disabling.  Constant albuminuria 
with some edema; or, definite decrease in kidney function; 
or, hypertension rated 40 percent under Code 7101, is 60 
percent disabling.  Persistent edema and albuminuria with BUN 
40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor 
health characterized by lethargy, weakness, anorexia, weight 
loss, or limitation of exertion, merits an 80 percent rating.  
A 100 percent evaluation is assigned for cases requiring 
regular dialysis, or precluding more than sedentary activity 
from one of the following: persistent edema and albuminuria; 
or, BUN more than 80mg%; or, creatinine more than 8mg%; or, 
markedly decreased function of kidney or other organ systems, 
especially cardiovascular.  38 C.F.R. § 4.115a. 

At a July 2004 VA examination, the veteran complained of back 
pain in the kidney area, lasting from an hour to all day.  
The pain is sharp in nature, and is rated as 5 out of 10.  He 
reported polyuria; there was no blood in the urine.  The 
veteran has been gaining weight, putting on about twenty 
pounds over two years.  There is no history of swelling of 
the legs.  He takes Tylenol or Motrin for pain, and states he 
gets tired walking up stairs or over a distance.  He cannot 
lift items.  The veteran was diagnosed as diabetic in 2001, 
and has gout.  At the time of the examination, the veteran 
was living in a psychiatric hospital, where he walked for 30 
to 40 minutes a day in the yard.  He sleeps 3 to 4 hours a 
night and reports a good appetite.  Physical examination 
showed no hypertension. Laboratory testing showed a BUN level 
of 16 and creatinine of 1.2, which were normal.  Urine was 
negative for protein or glucose.  The examiner stated that 
the veteran's condition was improved; the examiner in fact 
questioned the appropriateness of the current diagnosis, as 
testing, including BUN, creatinine, and potassium levels all 
contradicted the diagnosis of Bartter's Syndrome.  A 
nephrologist consulting on the case recommended additional 
testing.

VA treatment records from March 2005 to February 2006, as 
well as laboratory results from 1996 forward, reveal 
intermittent hypokalemia suggestive of Bartter's Syndrome, 
though creatinine and BUN levels are generally normal over 
the decade.  Creatinine was slightly elevated at times; 
doctors attributed this to causes other than Bartter's 
Syndrome, such as diuretic use, dehydration, or diabetes.  
Urine was also consistently negative for protein or albumin.  
An April 2005 radiographic study showed no kidney problems or 
abnormalities.

The veteran testified before a hearing officer at the RO in 
April 2005.  He reported taking various medications for 
Bartter's Syndrome, including a potassium supplement.  The 
veteran also indicated he was taking hypertension medication.  
He complained of weakness of the arms and legs, disturbed 
vision from watery eyes, pain in the legs, weakened grip 
strength, and lessened appetite.  However, he also stated 
that he has been gaining weight, which the veteran attributed 
to drinking a lot of water.  He had pain across the lower 
back, which he stated was constant and severe.  Doctors had 
prescribed a cream for the back pain.  He had stopped using 
Motrin to protect his kidneys.  He is awakened at night by 
pain but is able to go back to sleep.  

Although doctors continue to monitor potassium levels and the 
veteran is required to take a potassium supplement, there is 
currently no medical evidence of Bartter's Syndrome 
symptomatology.  Renal function appears within normal limits 
on repeated laboratory testing, and no physical deformities 
have been shown.  BUN and creatinine levels are consistently 
normal, or are well below the levels required for assignment 
of an evaluation in excess of 60 percent.  

The veteran has registered complaints of weakness, poor 
appetite, back pain, and vision impairment, but there is no 
medical evidence relating these complaints to Bartter's 
Syndrome.  Doctors appear to attribute the complaints to a 
variety of other ailments, including diabetes and gout.  
Further, the subjective complaints of the veteran are 
inconsistent; he reports poor appetite, but has gained 
weight, or he cannot walk distances due to weakness, but 
exercises by walking 30 to 40 minutes.  In the absence of 
abnormal laboratory testing or general health impairment 
attributable to the service connected disease, an increased 
evaluation is not warranted.




ORDER

An evaluation in excess of 60 percent for Bartter's Syndrome 
is denied.



____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs