Citation Nr: 1300749 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-11 370A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial disability rating in excess of 30 percent from August 1, 2009 for glomerulonephritis with hypertension, status post kidney transplant. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from January 2001 to April 2005. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from rating decisions issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Louis, Missouri. In October 2006, the RO awarded service connection for glomerulonephritis and assigned a 30 percent disability rating, effective September 8, 2005. In November 2006, the Veteran requested a reconsideration of this decision stating that his service-connected disability had worsened and that he wanted an increased rating. A November 2006 rating decision reflects that the Veteran was awarded a 60 percent disability rating for glomerulonephritis, effective September 8, 2005. In a July 2007 rating decision, the RO granted an 80 percent disability rating for glomerulonephritis, effective February 27, 2007. The Veteran disagreed with this rating in August 2007. By a September 2007 rating decision, the RO awarded the Veteran a 100 percent disability rating for glomerulonephritis, effective May 15, 2007. In December 2008, the RO furnished a rating decision in which the Veteran's 100 percent disability rating for glomerulonephritis, effective May 15, 2007, was proposed to be decreased to 30 percent. Notice of this decision was provided in December 2008. In March 2009, the Board, in part, remanded the Veteran's claim for entitlement to a disability rating in excess of 80 percent prior to May 15, 2007, for the issuance of a statement of the case ("SOC") on this issue. Thereafter, in March 2009, the Veteran was provided an SOC, and in April 2009, filed a timely substantive appeal. In a May 2009 rating decision, the RO reduced the Veteran's 100 percent disability rating for glomerulonephritis, effective from May 15, 2007, to 30 percent, effective August 1, 2009, sixty days from the date of this rating decision. A January 2012 rating decision reflects that the Veteran's 80 percent disability rating for glomerulonephritis, previously effective February 27, 2007, was awarded back to September 25, 2006, as the RO found that Veteran met the criteria for an 80 percent disability rating for glomerulonephritis from that time. An evaluation of 100 percent was assigned effective from May 15, 2007 and an evaluation of 30 percent was assigned effective August 2, 2009. In May 2012, the Board denied increased ratings for the Veteran's glomerulonephritis prior to May 15, 2007, and remanded the issue of entitlement to a rating in excess of 30 percent from August 2009 for additional development, specifically to allow the Veteran to undergo a new VA examination to determine the severity of his disability. The examination took place in June 2012, and by means of a November 2012 Supplemental Statement of the Case ("SSOC"), the Appeals Management Center continued the previous 30 percent disability rating for the relevant period in question from August 2009. The claims folder has now been returned to the Board for further appellate proceedings. FINDING OF FACT For the period August 1, 2009 forward, the Veteran's glomerulonephritis with hypertension, status post kidney transplant, has been manifested by symptoms no greater than albumin constant with red blood cells, but without evidence of edema or a definite decrease in kidney function, or hypertension that is at least 10 percent disabling under 38 C.F.R. § 4.115a Diagnostic Code 7101 (2012). CONCLUSION OF LAW From period August 1, 2009, the criteria for the assignment of an initial disability rating in excess of 30 percent for glomerulonephritis with hypertension, status post kidney transplant, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.115a, 4.115b, Diagnostic Codes 7101, 7531, 7536 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. For initial rating claims, where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven; therefore, 38 U.S.C.A. § 5103(a) notice is no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Veteran was provided notice of the VCAA via letters dated in June 2006 and May 2007. These letters informed him of the types of information and evidence necessary to substantiate the claim, as well as the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. These letters also provided the Veteran with information concerning how VA establishes the effective date and disability rating elements of a claim, thus satisfying Dingess. The claim was subsequently readjudicated in a March 2009 SOC, as well as January 2012 and November 2012 SSOCs. B.) Duty to Assist The Board is satisfied that the VA duty to assist has been satisfied. The claims folder contains the Veteran's service and post-service treatment records, as well as a VA examination dated June 2012. The claims file also contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the VA examination report shows that the VA examiner performed a comprehensive examination, interviewed the Veteran concerning his associated complaints and symptomatology, reviewed diagnostic test results, and noted the examination findings in the examination report. Accordingly, the Board concludes that the examination report is adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). The Veteran's glomerulonephritis with hypertension, status post kidney transplant, has been evaluated under hyphenated DCs 7536-7531, which are the individual diagnostic codes used to evaluate glomerulonephritis and kidney transplant. The diagnostic criteria provide that both conditions are to be rated as renal dysfunction under 38 C.F.R. § 4.115a. A minimum rating of 30 percent is provided under DC 7531. Pursuant to 38 C.F.R. § 4.115a, a 30 percent rating is warranted 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 DC 7101. A 60 percent disability rating is warranted for renal dysfunction characterized by constant albuminuria with some edema; or, where there is a definite decrease in kidney function; or, where hypertension is at least 40 percent disabling under DC 7101. An 80 percent disability rating is warranted where there is persistent edema and albuminuria with blood urea nitrogen ("BUN") 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent disability rating is warranted where the renal dysfunction requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, where BUN is more than 80mg%; or, creatinine more than 8mg%; or where there is markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. DC 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating is warranted with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is warranted with diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted with diastolic pressure predominantly 120 or more. A 60 percent rating is warranted with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. By way of background, the Veteran developed membrane nephritis with hypertension, nephritic syndrome and declining renal function during service. He began kidney dialysis in July 2007, and in November 2007, he underwent a kidney transplant. Since that time, he has received regular outpatient treatment at the Fayetteville and Tennessee Valley VA Medical Centers ("VAMC"), as well as outpatient treatment at the Vanderbilt VAMC transplant center. VAMC treatment records beginning in August 2009, however, fail to demonstrate that the Veteran's glomerulonephritis with hypertension, status post kidney transplant, has increased in severity beyond the symptomatology associated with the current 30 percent disability rating. Significantly, these reports demonstrate that his laboratory work showed creatinine levels were stable, with normal BUN levels at 16 percent and 17 percent in July 2011 and January 2012, respectively. They also reveal no evidence of edema, and the Veteran consistently reported that his appetite was good and that he was experiencing no negative health effects due to his kidney disease. Notably, while a pre-August 2009 urinalysis revealed a possibility of blood in the urine, an October 2009 test showed no significant blood in the urine. Moreover, the Veteran's hypertension has also been well-controlled on blood pressure medication. For VA rating purposes, hypertension means that the diastolic pressure is predominantly 90 mm Hg or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 mm Hg or greater, with a diastolic pressure of less than 90 mm Hg. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Note (1) to Diagnostic Code 7107 states that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. In this case, VAMC treatment records show that, with the exception of one reading in June 2011 (which initially showed blood pressure at 144/100, but was subsequently noted to be 128/88 on manual recheck), the Veteran has been shown to have normal blood pressure readings. These included blood pressure findings of 126/85 in September 2009, 126/78 in August 2010, 132/82 in August 2011 and 109/61 in January 2012. As noted above, in June 2012, the Veteran was afforded a new VA examination to determine the current severity of his kidney disease. The examiner noted that, beginning in October 2010, although the Veteran began not showing up for regular laboratory tests, he was still doing well in August 2011. At that time, his blood pressure was 130/82 and his renal functions were still good with a BUN of 19 percent, normal creatinine of 0.84 mg/L and a glomerular filtration rate of greater than 60. On the day of the VA examination, his blood pressure was measured at 119/66. During the examination, the Veteran reported that his appetite was good and that, during a routine outpatient evaluation with the Vanderbilt VAMC transplant team four months earlier, he had been advised that he was doing well. The Board notes that, although the VA examiner selected the "yes" box on the examination report form in response to the question of whether the Veteran had any current renal dysfunction, he expressly answered "no" to subsequent questions regarding whether the Veteran had any signs or symptoms due to renal dysfunction. Specifically, he noted that there was no evidence of albuminuria, edema, anorexia, weight loss, generalized poor health due to renal dysfunction, lethargy, weakness or limitation of exertion due to renal dysfunction, markedly-decreased function of other organ systems caused by renal dysfunction, or the ability only to perform sedentary activity. While he noted that the Veteran had suffered from hypertension prior to his kidney transplant, since that time, the condition was being controlled with continuous medication. The examiner also noted that the Veteran's kidney disorder had no impact on his ability to work, as he had recently begun a new job as a social worker and had previously worked five years for Hilton Hotels. The examiner concluded that, although the Veteran previously had a diagnosis of severe glomerulonephritis, as a result of his kidney transplant, he did not now have the condition. He further noted that although the Veteran continued to have some hypertension, it was generally controlled. Finally, he noted that the Veteran did not have persistent or constant albuminuria or edema and had not experienced any definite decrease in kidney function or other organ function, including cardiovascular function, since his transplant. After a careful review of the evidence of record, the Board concludes that, for the period August 1, 2009 forward, entitlement to an initial disability evaluation in excess of 30 percent for the Veteran's glomerulonephritis with hypertension, status post kidney transplant, is not warranted under either DC 7536 or DC 7531. In this regard, the Board has based its conclusion on the medical evidence outlined above, which demonstrates symptoms no greater than albumin constant with red blood cells, but without evidence of edema or a definite decrease in kidney function, or hypertension that is at least 40 percent disabling under Diagnostic Code 7101. As noted above, a 60 percent disability rating is warranted for renal dysfunction characterized by constant albuminuria with some edema; or, where there is a definite decrease in kidney function; or, where hypertension is at least 40 percent disabling under DC 7101. However, as demonstrated by the aforementioned medical findings, since August 1, 2009, there has been no evidence of any of these symptoms. Accordingly, as there is no objective evidence of record for the period August 1, 2009 that would show that the Veteran's glomerulonephritis with hypertension, status post kidney transplant, more nearly approximates the criteria for a higher disability rating under DCs 7536-7531, the claim must be denied. The Board has also considered whether other diagnostic codes are applicable to the Veteran's kidney disorder. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). In this case, however, there are no other diagnostic codes that apply. In addition to the medical evidence, the Board has considered the Veteran's personal assertions that, for the period on appeal, his kidney disorder has increased in severity. In this respect, the Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Court has also held that a lay person without medical training, such as the Veteran, is not competent to offer an opinion on a matter clearly requiring medical expertise, such as the severity of kidney disease. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Such competent evidence concerning the nature and extent of the Veteran's kidney disorder has been provided by the medical personnel who examined him during the period on appeal, including the VA examiner who rendered a probative opinion in conjunction with his evaluation. The medical findings directly address the criteria under which the Veteran's kidney disease is evaluated. Accordingly, although the Board recognizes the Veteran's sincere belief that he is entitled to an increased disability rating for the period August 1, 2009 forward, the Board places greater probative value in the findings and opinions of the medical professionals who examined him. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1) (2012), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R § 3.321(b)(1). Here, for the period August 1, 2009 forward, the ratings schedule is not inadequate. First, as previously discussed, findings supporting a higher disability rating have not been documented. Moreover, during the period on appeal, it has not been shown that the service-connected disability has required frequent periods of hospitalization or produced marked interference with the Veteran's employment beyond the intent of the rating schedule. The Board thus finds that referral for consideration of the assignment of an extraschedular rating is not warranted. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Thun, supra. In summary, the Board concludes that for the period August 1, 2009 forward, the evidence of record is against the Veteran's claim of entitlement to an initial rating in excess of 30 percent for glomerulonephritis with hypertension, status post kidney transplant. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to an initial disability rating in excess of 30 percent from August 1, 2009 for glomerulonephritis with hypertension, status post kidney transplant, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs