Citation Nr: 1303053 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-35 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial compensable rating for polycystic kidney disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active duty for training from January to May 2003 and active duty from January to August 2006. This matter comes before the Board of Veterans Appeals (Board) on appeal from the April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which granted service connection for polycystic kidney disease and evaluated the disability as noncompensably disabling, effective October 4, 2007. FINDINGS OF FACT 1. The Veteran's polycystic kidney disease has been manifested by subjective complaints of intermittent pain in the lower rib cage area and flanks with otherwise normal diagnostic/laboratory findings. 2. The Veteran's polycystic kidney disease has not been productive of constant albumin or recurring albumin with hyaline and granular casts or red blood cells, transient or slight edema, or hypertension characterized by diastolic pressure predominantly 100 or more, or, systolic pressure predominantly 160 or more; nor has the Veteran been shown to have a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. CONCLUSION OF LAW The criteria for a compensable disability rating for the service-connected polycystic kidney disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7533 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. Through an October 2007 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his underlying service connection claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the October 2007 letter. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the October 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Thus, the Board finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). In addition, the Veteran was given the opportunity to respond following the October 2007 notice letter. In any event, as is the case here, once a veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2010); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's current claim. Indeed, at no time has the Veteran referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. Moreover, in addition to obtaining all relevant records, the Veteran was also afforded VA examinations in April 2008 and June 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are adequate as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and reflect that the examiners conducted a full examination of the Veteran, including information necessary to apply the pertinent rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. §§ 5103(a), 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that his service-connected polycystic kidney disease is more disabling than reflected by the noncompensable disability rating initially assigned. For the reasons that follow, the Board concludes that a compensable disability rating is not warranted. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's claim, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2012). In the April 2008 rating decision, the RO granted service connection and assigned an initial noncompensable (0 percent) rating for polycystic kidney disease, pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7533. Diagnostic Code 7533 evaluates cystic disease of the kidneys, and indicates that such is to be rated as renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7533. In evaluating renal dysfunction, a noncompensable evaluation is warranted for evidence of albumin and casts with history of acute nephritis; or, hypertension noncompensable under Diagnostic Code 7101. A 30 percent rating is warranted for constant albumin 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 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is warranted for renal dysfunction with 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 rating is warranted for renal dysfunction 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. See 38 C.F.R. § 4.115a (2012). Diagnostic Code 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, Diagnostic Code 7101. Service treatment records reflect that, during his period of active duty in 2006, the Veteran began experiencing severe abdominal pain in his upper abdomen. Specifically, a March 2006 Chronological Record of Medical Care reflects that three weeks into his period of service, the Veteran began experiencing sharp intense pain on each side of his abdomen. Soon thereafter, he underwent a computed tomography (CT) of the abdomen, the findings of which were "suspicious for renal cystic disease." The impression derived from these results revealed renal masses suggestive of renal cystic disease. See February 2006 CT results. It was further noted that "polycystic kidney disease may be in the differential." An April 2006 letter issued by a nephrologist at the Womack Army Medical Center indicated that the CT results were consistent with autosomal dominant polycystic kidney disease. The Veteran was thereafter placed on a limited profile and prohibited from participating in backpack marching exercises or wearing and/or carrying any body armor. Additionally, it was noted that the Veteran should perform his physical training exercises at his own pace and distance. At the May 2006 Medical Board examination, the medical examiner noted that the Veteran had chronic abdominal pain secondary to polycystic kidney disease and referred the Veteran to a Medical Evaluation Board (MEB). During his May 2006 physical evaluation, the Veteran provided his medical history and reported that he began experiencing severe abdominal pain in January 2006. According to the Veteran, he had not experienced any pain in the previous month since being placed on a limited profile. Upon physical examination, the examiner described the Veteran's abdomen as nontender and devoid of any masses. The examiner further noted that the laboratory studies were negative for protein or glucose. Based on her review of the Veteran's medical and diagnostic records, the MEB physician diagnosed the Veteran with autosomal dominant polycystic disease, pre-hypertension, and abdominal pain as a result of the autosomal dominant polycystic disease. In the June 2006 MEB report, it was determined that the Veteran had chronic abdominal pain secondary to polycystic kidney disease that existed prior to service and was permanently aggravated by service. The Veteran was discharged from service in August 2006 as a result of this condition. Post-service records of VA treatment reflect continued complaints of pain in the abdomen region. In August 2006, the Veteran presented at the West Haven VA Medical Center (VAMC) to establish VA care. The VA physician, J.T.Y., M.D., reviewed the Veteran's medical history, and acknowledged his in-service diagnosis of polycystic kidney disease. Dr. Y. also noted that the April 2006 sonogram of the abdomen revealed multiple bilateral renal cysts which correlated with the February 2006 CT findings. On physical examination, the Veteran's blood pressure reading was shown to be 130/80 and his abdomen was described as soft, nontender, with no evidence of hepatosplenomegaly on palpation. An evaluation of the joints was also negative for any signs of a deformity, tenderness, warmth, or effusion. According to Dr. Y., the Veteran should continue to receive follow-up care for his kidney disorder, and should also be started on lisinopril for his hypertension. During an August 2007 VA outpatient visit, the physician noted that the Veteran tolerated his blood pressure medication well, and described the Veteran's blood pressure as well-controlled remaining in the "110-120's/70's" range. The Veteran was assessed with autosomal dominant polycystic kidney disease with normal renal function and well-controlled blood pressure. The Veteran was afforded a VA genitourinary examination in April 2008, at which time his medical history was reviewed and discussed. According to the examiner, aggressive blood pressure control was necessary to slow the progression of the Veteran's kidney disorder. The examiner further noted that since his diagnosis, the Veteran had been on antihypertensive medication and had maintained normal renal function per the August 2007 renal clinical note. The Veteran reported to feel well at the time of his examination, but added that he experiences occasional pain in his lower rib cage area with prolonged standing. According to the Veteran, working as a barber requires that he stand for long periods of time, and the rib/flank pain usually lasts the entire day once it begins. He denied taking any medication for this, and further denied any symptoms of lethargy, weakness, anorexia or weight loss or weight gain. In addition, the Veteran denied any hesitancy, dysuria and incontinence, and stated that the frequency of his urination averaged somewhere between six to seven times a day. The Veteran further denied any urinary disorders, treatment for urinary disorders, dialysis or loss of use of a creative organ. On examination, the examiner noted that the Veteran's blood pressure was 110/80, and observed no evidence of clubbing, cyanosis or edema in the lower extremities. According to the examiner, results from the diagnostic tests indicated that the microalbumin to creatine ratio could not be calculated and the urine albumin was less than 0.5 milligrams per deciliter (mg/dL). It was further noted that urine protein was negative. The Veteran was diagnosed with autosomal dominant polycystic kidney disease. The examiner determined there to be no evidence of renal functional impairment or any impact on the Veteran's current employment as a result of his kidney disorder. During a June 2008 follow-up visit at the VA renal clinic, the Veteran described his kidney problem as "very stable," with only occasional pain below the rib cage. The Veteran's blood pressure reading was shown to be 105/69 and he did not exhibit any edema in his extremities. The VA physician, J.X., M.D., renewed the Veteran's prescription for lisinopril and described his (the Veteran's) blood pressure as well controlled. Dr. X. also assessed the Veteran with autosomal dominant polycystic kidney disease with normal renal function and reiterated the importance of regulating the Veteran's blood pressure. During a November 2008 VA primary care visit, the Veteran's blood pressure reading was shown to be 120/72, and the Veteran's abdomen was described as flat and soft on palpation. In addition, the Veteran's upper and lower extremities were shown to be normal. At a June 2009 VA primary care visit, the Veteran's blood pressure reading was shown to be 120/71 and the Veteran's abdomen was flat in appearance and soft on palpation. The Veteran was assessed with hypertension that was well controlled and autosomal polycystic kidney disease that was asymptomatic. The Veteran was also evaluated by a nephrologist, at which time, he reported that since his 2006 diagnosis of polycystic kidney disease, he rarely displayed any symptoms other than occasional twinges of pain. The Veteran denied any symptoms of hematuria or fevers/chills. On examination, the blood pressure reading was shown to be 131/70; the abdomen was described as soft, nontender and nondistended; and there was no evidence of edema in the Veteran's extremities. It was noted that the Veteran was taking 20 mg of lisinopril on a daily basis to help control his blood pressure. In addition, results from a December 2008 blood test were discussed, and indicated that the Veteran's protein level was 7.4 and his albumin level was 4.5. According to the nephrologist, A.P., M.D., given that the only confirmation for the Veteran's diagnosis is a report from another hospital, another imaging report should be obtained to confirm this diagnosis and to establish a baseline to compare future scans to. Dr. P. further noted that not a lot could be done to slow the progression of the Veteran's kidney disorder, and stressed the importance of keeping his blood pressure under control. According to Dr. P., the Veteran's blood pressure was currently well controlled with lisinopril. The Veteran was afforded another VA genitourinary examination in June 2010. During the examination, the examiner reviewed the Veteran's claims file and medical records and noted that the Veteran was diagnosed with polycystic kidney disease in February 2006. The examiner further noted that the Veteran underwent another CT of the abdomen in June 2009, the results of which re-confirmed the previous diagnosis of polycystic kidney disease. The Veteran denied any symptoms of lethargy, weakness, anorexia or weight loss or gain, and added that his weight was stable and ranged somewhere between 195 to 200 pounds. According to the Veteran, he takes 20 mg of lisinopril a day to help control his hypertension. With respect to his urinary symptoms, the Veteran reported to urinate nearly ten to twelve times a day with occasional awakenings for nocturia. The Veteran denied any incontinence, hesitancy, stream or dysuria and further denied undergoing any surgical procedures on any part of his urinary tract. The Veteran also denied experiencing recurrent urinary tract infections, renal colic or bladder stones, acute nephritis, or being hospitalized for urinary tract disease in the past year. According to the examiner, the Veteran is able to conduct his activities of daily living independently, and worked full time as a barber. While he has intermittent bilateral flank pain at the end of the day, he had not needed to miss work as a result of the pain. On physical examination, the Veteran's blood pressure reading was shown to be 110/70 in both arms, and his extremities were clear for any signs of edema . The Veteran's sensation and reflexes were shown to be normal, his peripheral pulses were described as full, and the urinalysis results were negative for any protein or glucose. The examiner did not detect any other residuals of genitourinary disease. Based on his review of the diagnostic records, as well as his discussion with, and physical examination of the Veteran, the examiner diagnosed the Veteran with polycystic kidney disease and described the examination results as benign. According to the examiner, there was no evidence of significant kidney failure. Based on a complete review of the evidence of record, and considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that assignment of an initial compensable rating for the Veteran's service-connected polycystic kidney disease is not warranted. In this regard, the pertinent evidence of record does not reflect that the service-connected polycystic kidney disease has been manifested by constant albumin or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling, so as to warrant a 30 percent rating for renal dysfunction. Moreover, results from the April 2008, June 2008 and June 2010 urinalyses were either negative or clear for signs of protein and/or albumin, and the April 2008 VA examiner specifically noted that the urine albumin level was less than 0.5 mg/dL. Despite the Veteran's December 2008 lab results, which reflected a protein level of 7.4 and an albumin level of 4.5, all of the Veteran's treatment providers have assessed him with normal renal function. Indeed, the evidence does not reflect a decrease in kidney function. Since his separation from service, the BUN level has been no higher than 19 mg% and creatine has been no higher than 0.9 mg%. In addition, a review of the treatment records and examination reports has consistently been clear for any signs of edema in the Veteran's extremities. Furthermore, as discussed above, the Veteran's blood pressure readings since his separation from service have been shown to be 130/80 (August 2006), 120/75 (August 2007), 110/80 (April 2008), 105/69 (June 2008), 120/72, 131/83 (November 2008), 120/71, 130/70 (June 2009), and 110/70 (June 2010). Despite the medical evidence which reflects that the Veteran has been on medication for his hypertension since 2006, there is no evidence of record to show that he had a history of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160. Indeed, every treatment provider and medical examiner has described the Veteran's hypertension as well controlled, and while they have stressed the importance of regulating his medication to keep his blood pressure under control, the Veteran's diastolic pressure throughout the appeal period has never been higher than 83. See November 2008 Nursing Triage Intake Note. The Board has also considered whether any other diagnostic codes are applicable to the Veteran's claim. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). However, there is no evidence that the Veteran has ever been diagnosed with any other disorders of the genitourinary system during the course of this appeal or during the one-year period prior to his claim. The Board acknowledges the Veteran's complaints of frequent urination - specifically his assertion at the June 2010 VA examination that he urinates between ten to twelve times during the day. However, the examiner did not relate the Veteran's urinary frequency to his polycystic kidney disease and there is no indication that the Veteran has experienced such urinary frequency as a result of his service-connected kidney disorder. Indeed, the June 2010 VA examiner described the Veteran's examination results as benign and specifically determined there to be no other residuals of genitourinary disease. Thus, an initial compensable rating, based on voiding dysfunction, is not warranted. Also, while the Veteran has reported occasional pain in the lower rib cage area and the flanks, the neurological findings have been clear for any abnormalities. Under these circumstances, the Board finds that the record presents no basis for assignment of an initial compensable rating for the service-connected polycystic kidney disease, under the applicable rating criteria. Additionally, as the record contains no evidence showing that the Veteran is entitled to a higher rating for his service-connected polycystic kidney disease at any point during the instant appeal, no staged ratings are appropriate. Thus, the Board finds that the current noncompensable disability rating is appropriate for the entirety of the rating period. 38 C.F.R. § 4.115b, Diagnostic Code 7533. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulations, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), the Unites States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's kidney disease, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented; nor are there any other factors that take this disability outside the usual rating criteria. The criteria contemplate his symptoms. As such, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. ORDER Entitlement to an initial compensable rating for polycystic kidney disease is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs