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