Citation Nr: 0811459 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 01-03 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to restoration of a 60 percent schedular evaluation for renal insufficiency, status post kidney transplant, now rated as 30 percent disabling. 2. Entitlement to a total rating by reason of individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from November 1990 to March 1991. This case initially came to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which reduced the evaluation for the veteran's renal insufficiency, status post kidney transplant, from 60 to 30 percent, and denied his claim for a TDIU. The Board likewise denied the appellant's claims in a December 2005 decision. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to an April 2006 Order, following a Joint Motion for Remand and to Stay Further Proceedings (Joint Motion). The parties requested that the Court vacate the Board's December 2005 decision and remand the matter so that the Board could more fully detail whether there had been improvement in the veteran's kidney disorder. The TDIU claim was also remanded for readjudication pending the resolution of the claim for restoration of the evaluation of the veteran's kidney disorder. The Court granted the Joint Motion and remanded the case to the Board. The Board subsequently requested a medical opinion from a Veterans Health Association (VHA) physician in October 2006. In January 2007, the veteran submitted additional evidence to the Board and requested that the case be returned to the RO for initial review of that evidence. This was accomplished in February 2007. The issue of entitlement to a total rating by reason of individual unemployability due to service connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Medical evidence in January and April 1999 are productive of mild kidney impairment, status post kidney transplant. 2. Medical evidence since April 1999 shows sustained improvement of the veteran's kidney disease, without definite impairment of kidney function. CONCLUSION OF LAW The criteria for restoration of a 60 percent rating for the residuals of a kidney transplant have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Code 7500 (1993 & 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. In a VCAA letter dated in October 2003, the RO notified the appellant of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA-compliant notice was not provided to the veteran prior to the first unfavorable adjudication of this case, which dated from March and June 2000, prior to the enactment of the VCAA. However, after VCAA-compliant notice was sent, the claim[s] was[were] readjudicated without "taint" from prior adjudications. Thus, to decide the appeal now would not be prejudicial. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for an increased rating, but he was not provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal. Despite the inadequate notice provided to the veteran on these latter two elements, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for restoration of his 60 percent rating, any questions as to the appropriate effective date is rendered moot. Review of the record shows that the veteran was granted service connection for renal insufficiency, with hypertension in August 1999. The initial evaluations indicated a rating of 60 percent, effective in March 1991; 80 percent, effective in April 1995; and 100 percent, effective in September 1997. The 100 percent evaluation was based upon kidney transplant surgery. Following the surgery rating, the veteran was assigned a 60 percent rating, effective in June 1999. This evaluation was based upon the rating criteria that was in effect prior to February 1994. The regulations for the evaluation of disabilities of the genitourinary system were amended, effective in February 1994. When regulations are changed during the course of the veteran's appeal, the criteria that are to the advantage of the veteran should be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Revised regulations do not allow for their retroactive application unless those regulations contain such provisions and may only be applied as of the effective date. VAOPGCPREC 3-2000. The appeal comes from a reduction that was proposed in March 2000 and carried out in June 2000 in compliance with 38 C.F.R. § 3.105(e) on the basis that improvement had been demonstrated under both the old and new criteria. The 30 percent rating was assigned effective September 1, 2000. The Board must review the propriety of the reduction of the veteran's kidney disease from 60 percent to 30 percent disabling. For the reduction to be upheld, it is necessary that the evidence show actual improvement in the disability. As the veteran's disability evaluation was in effect for more than five years, the provisions of 38 C.F.R. § 3.344 are for application. Examinations less full or complete than those on which payments were authorized or continued will not be used as a basis for reduction. Ratings on account of diseases subject to temporary or episodic improvement which have been in effect for five years or more will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344. To reduce the veteran's disability rating the regulations require that the VA examination performed prior to the rating reduction be full and complete, and that the extent of the medical examinations made prior to this VA examination, with their findings and conclusions, be discussed by the Board. Following this, the VA examination on which the reduction was based must be shown to be as full and complete as the prior examinations. Then, the Board must make a specific finding that the veteran's condition has actually improved, or that there has been "material improvement" that was "reasonably certain...(to) be maintained under the ordinary conditions of life." See Brown v. Brown, 5 Vet. App. 413 (1993). 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. The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis herein is undertaken with consideration of the possibility that different ratings may be warranted for different periods. The criteria in effect prior to February 1994 provided that following the removal of one kidney, with nephritis, infection, or pathology of the other would be rated as 100 percent disabling for severe disability, 60 percent disabling, for mild or moderate disability, or 30 percent disabling with the absence of one kidney with the other functioning normally. 38 C.F.R. § 4.115a Code 7500 (1993). Current ratings provide that Removal of one kidney will be rated at a minimum 30 percent evaluation, or rated as renal dysfunction if there is nephritis, infection or pathology of the other kidney. 38 C.F.R. § 4.115b, Code 7500. Renal dysfunction will be rated as noncompensable where albumin and casts with a history of acute nephritis, or hypertension that is noncompensable under diagnostic code 7101. With albumin constant or recurring with hyaline and granular casts or red blood cells, or, with transient or slight edema or hypertension at least 10 percent 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 evaluation will be warranted; with persistent edema and albuminuria with BUN 40 to 80 mg%, or creatinine 4 to 8 mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, an 80 percent evaluation is warranted; requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, or, BUN more than 80mg%, or, creatine more than 8 mg%, or, markedly decreased function of kidney or other organ systems, especially cardiovascular, a 100 percent evaluation is warranted. 38 C.F.R. § 4.115a. 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. The 60 percent evaluation for the veteran's kidney transplant residuals was assigned on the basis of several VA compensation examinations used to establish service connection that were dated in February 1998, May 1999, and June 1999 and laboratory blood work that was conducted in January and April 1999. Those examinations showed that the veteran was status post renal transplant and that the transplant seemed to be working well. The laboratory studies were interpreted as showing elevated creatinine and BUN levels, indicating at least mild impairment of renal function. Those levels were noted to be 1.4 mg/dL in January 1999 and 1.3mg/dL in April 1999 for creatinine; and 24 mg/dL in January 1999 and 22 mg/dL in April 1999 for BUN. An examination was conducted by VA in December 1999. At that time, the veteran stated that he had lethargy, occasional weakness, and anorexia. Examination showed no peripheral edema and no evidence of ascites, although the veteran stated that he has some swelling at night. Laboratory testing was within normal limits, specifically showing the veteran's creatinine 1.3 mg/dL, which was noted to be within normal limits; and BUN to be 15 mg/dL, also considered to be within normal limits. The veteran's blood pressure readings were noted to be 178/96 and 150/98. It was noted that he was taking medication for his hypertension. An examination was conducted by VA in September 2000. At that time, it was noted that laboratory testing had shown the veteran's BUN and creatinine levels to be "a little bit elevated." Laboratory testing in January 2001 was completely within normal limits. Creatinine was noted to be 1.4 mg/dL and BUN was 19 mg/dL. A series of laboratory tests conducted from July 2001 to January 2002 showed levels to be normal, with the exception of one high creatinine reading of 1.5 in July 2001. An examination was conducted by VA in June 2004. At that time, the veteran's history of kidney disease, status post kidney transplant and hypertension was reviewed. Examination was generally within normal limits and showed blood pressure readings were 149/84, 159/81, and 151/84. Laboratory testing in February 2004 reportedly showed slight proteinuria, but a comprehensive metabolic profile and CBC were normal. Laboratory testing performed in July 2004 showed the veteran's creatinine level to be 1.7 mg/dL. It was noted at that time, that the veteran had run out of his medications. He was advised to avoid having this happen. In January 2005, the veteran's kidney function was noted to be 1.4 mg/dL. In October 2006, the Board referred the veteran's claims folder to a VA specialist for review. The specialist was requested to review the file and comment on whether the evidence showed improvement in the veteran's kidney function from the initial evaluation in 1991 to those dated in 1999 and whether the evidence since 1999 showed definite impairment of kidney function. Later that month, the specialist responded that the evidence did show improvement in the veteran's kidney function from the time of the transplantation in 1997 to the last evaluation in January 2005 and that from 1999 to January 2005, the medical evidence of record did not show definite impairment of kidney function so as to support the criteria for a 60 percent rating. The specialist summarized that the veteran's transplant function had been stable. The serum creatinine levels had fluctuated between 1.4 and 2 mg/dL, proteinuria had fluctuated from zero to 1+ without evidence of progression, and there was no description of fluid retention. Moreover, the veteran's hypertension, while not always controlled, did not cause significant disability and should be easy to control with medication. Outpatient treatment records dated through November 2006 have been received. These include an April 2006 report that shows a blood pressure reading of 160/108 and a creatinine level of 1.6 mg/dL. It was noted that the veteran had not been compliant with his medications for the past two months. The veteran's kidney function is shown to be improved from the time immediately following his kidney transplant to the present time. On laboratory testing in January and April 1999 mildly elevated BUN was shown, but this has resolved without significant disability since that time. The examination reports and treatment records since April 1999 show some elevations of the veteran's creatinine level, but in October 2006, the specialist specifically rendered an opinion that this was not a manifestation of definite impairment of kidney function. As such, improvement is shown from April 1999 to the later records beginning in December 1999. Moreover, the criteria for a rating in excess of 30 percent have not been demonstrated in the record. Therefore, and the reduction from 60 percent to the minimum 30 percent rating was proper and must be upheld. ORDER Restoration of a 60 percent rating for status post kidney transplant is denied. REMAND The veteran is also claiming entitlement to a total rating by reason of individual unemployability due to service connected disabilities. Review of the record shows that he is currently rated 30 percent disabled for status post kidney transplant; 30 percent disabled for a depressive disorder, associated with status post kidney transplant; 10 percent for hypertension; and noncompensable for erectile dysfunction, associated with status post kidney transplant. Thus his combined evaluation is 60 percent from disabilities of a common etiology and qualifies for consideration for this benefit. 38 C.F.R. § 4.16. Although his kidney disease is not shown to warrant a rating in excess of 30 percent, a possible worsening of his psychiatric disorder is shown in treatment records dated in June and November 2006. He has not had a compensation examination for this disability for a number of years. It is found that a review examination to ascertain the current nature of his service connected depression is necessary prior to appellate consideration of the individual unemployability claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for a VA psychiatric examination for the purpose of ascertaining the severity of his service-connected depression. All necessary special studies or tests are to be accomplished. The claims files should be made available to the examiner for review in connection with the examination. If possible, a Global Assessment of Functioning (GAF) score attributable solely to the depression should be assigned. The examiner is then requested to offer an opinion as to whether and to what degree the veteran's depression interferes with his ability to obtain and maintain gainful employment. For any psychiatric disorder(s) other than depression that are identified, the examiner should state what, if any, additional disability is associated with those disabilities. All opinions should be supported by a written rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Thereafter, the RO/AMC should readjudicate the remanded issue on appeal. If the determination remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The veteran and his representative should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs