Citation Nr: 1307637 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 06-23 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a compensable rating for cystic diseases of the kidneys. 2. Entitlement to a rating in excess of 40 percent for anemia. 3. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans (DAV) ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from March 1988 to March 1989. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which adjudicated the issues on appeal. The matters were previously before the Board in June 2007, November 2008, and October 2009 at which time they were remanded for additional development. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to ensure a total review of the evidence. Additionally, the Board notes that the Veteran's claim for total disability based on individual unemployability (TDIU) was granted by the RO on March 2011. Therefore this matter has been fully granted and is no longer on appeal before the Board. The Board further notes that a private attorney represented the Veteran for a limited period during the course of her appeal. However, the private attorney's representation was limited to issues which are no longer before the Board. As such only the DAV represented the Veteran on the matters before the Board at this time. Finally, the Board has received recent communication from the Veteran and attached medical records concerning a therapeutic abortion in 1989. These records, however, are not relevant to the Veteran's current claims before the Board which focus on the current condition of her kidney disease and anemia, as well as service connection for an unrelated low back disorder. Furthermore the attached medical records were already included in the evidence of record and have been considered in previous decisions of the Board. The Board has reviewed the evidence and see to prejudice in proceeding. FINDINGS OF FACT 1. The evidence of record does not establish the Veteran's cystic diseases of the kidney result in constant or recurring albumin with hyaline and granular casts or red blood cells; transient or slight edema; or hypertension with diastolic pressure predominantly 100 or more or systolic pressure predominately 160 or more. 2. The evidence of record does not establish the Veteran's anemia requires transfusion of platelets or red cells at least once every three months, or that infections recur at least once every three months. 3. The weight of the evidence is against a finding that the Veteran currently has a back disability which either began during, or was otherwise caused by, her military service. CONCLUSIONS OF LAW 1. Criteria for a rating a compensable rating for cystic diseases of the kidney have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.115a, 4.115b Diagnostic Code 7533 (2012). 2. Criteria for a rating in excess of 40 percent for anemia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.117 Diagnostic Code 7799-7716 (2012). 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cystic Diseases of the Kidney The Veteran is seeking an increased rating for her service connection cystic kidney disease. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations provide that cystic diseases of the kidneys shall be rated as renal dysfunction. 38 C.F.R. § 4.115b Diagnostic Code 7533. Under the rating for renal dysfunction a noncompensable rating is assigned when the Veteran has albumin and casts with history of acute nephritis or the Veteran's hypertension would not be compensable under Diagnostic Code 7101, that is diastolic pressure predominantly less than 100 and systolic pressure predominantly less than 160. 38 C.F.R. § 4.115a. A 30 percent rating is assigned when the Veteran has constant or recurring albumin with hyaline and granular casts or red blood cells; transient or slight edema; or hypertension with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, or requires continuous medication for control. Id. A 60 percent rating is assigned when the Veteran experiences constant albuminuria with some edema; definite decrease in kidney function; or hypertension with diastolic pressure predominantly 120 or more. An 80 percent rating is assigned when the Veteran has persistent edema and albuminuria with BUN 40 to 80mg%; creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A maximum 100 percent rating is assigned when the Veteran requires regular dialysis or is precluded from more than sedentary activity from one of the following: BUN more than 80 mg%, creatinine more than 8 mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. In this case the Veteran is seeking a compensable rating for cystic kidney disease. In June 2007 the Board remanded this issue so that a VA examination may be provided to determine the nature and severity of the Veteran's kidney disease. Such an exam was provided in August 2007. As such, the Board finds the remand instructions were complied with as required by Stegall v. West, 11 Vet. App. 268 (1998) and the Board may evaluate this claim. The Veteran filed this claim in May 2006, and treatment records since this point have been reviewed. Throughout this period the Veteran had blood pressure readings within the normal range, which would relate to a noncompensable hypertension rating for VA purposes, however a history of hypertension was noted. It does not appear the Veteran experienced albumin with hyaline and granular casts or red blood cells at any point during the period on appeal, providing evidence against this claim. In August 2007 the Veteran was provided with a VA examination for her kidney disease. The examiner reviewed the Veteran's medical history, the examined and interviewed the Veteran. The examiner reviewed a CT report from February 2007 which revealed multiple liver and kidney cysts which were too numerous to count. The examiner also noted renal enlargement and opined these findings were consistent with adult polycystic kidney disease. The examiner recommended the Veteran begin taking an ace inhibitor to possibly slow the progression of her kidney disease. The examiner noted that the Veteran had normal BUN and CRT and did not have albumin, protein, or casts; however she did have intermittent edema. The examiner opined there is no marked decline in renal function and the Veteran's general health at this time was fair to good. She did have fatigue and lethargy, as well as occasional weakness, but the examiner noted she was also anemic. Overall the examiner found there was no evidence of renal insufficiency, providing more evidence against her claim. The examiner also opined the Veteran's hypertension was less likely as not related to her polycystic kidney disease because there was no current acute renal insufficiency. Following this examination the Veteran was placed on an ace inhibitor which she continued to take throughout the period on appeal. Medical records after the Veteran's examination reveal extensive treatment for her anemia, including blood transfusions, but does not specifically note any increase in symptomatology for her polycystic kidney disease. As such, the Board finds the best, most recent evidence regarding the current condition of the Veteran's kidney disease is the report from her August 2007 examination. The examiner opined that the Veteran did have polycystic kidney disease, but opined the Veteran did not have any renal insufficiency. As such, the Board finds a noncompensable rating is warranted for the entire period on appeal. The majority of the medical evidence establishes that although the Veteran had cysts in her kidney, she did not experience the symptoms of a compensable rating for cystic kidney disease, including constant or recurring albumin with hyaline and granular casts or red blood cells. 38 C.F.R. § 4.115a. As such the Veteran's claim for a compensable rating for cystic diseases of the kidney is denied. Even with consideration of the Veteran's statements the medical evidence, which must be given high probative value, is clear: the Veteran does not meet the criteria of the compensable rating for this condition, at this time. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court of Appeals for Veterans Claims (Court) has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case the Veteran has already been granted total disability due to individual unemployment. The claim for TDIU included all considerations which would have been contemplated in a referral for extraschedular rating, and therefore such a referral is not applicable. That is, the Veteran cannot receive more than total disability due to unemployability. As such, the Veteran's claim for cystic kidney disease is not referred for extraschedular consideration. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, as discussed, the Veteran has already been granted TDIU. As such, an inferred claim under Rice is not applicable. Anemia The Veteran is also seeking an increased rating for her service connected anemia. 38 C.F.R. § 4.117 Diagnostic Code 7700. Under the regulations a non-compensable rating is assigned when the Veteran's hemoglobin is 10gm/100ml or less and asymptomatic. A 10 percent rating is assigned when hemoglobin is 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is assigned when hemoglobin is 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is assigned when hemoglobin is 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiolmegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). A maximum 100 percent rating is assigned when hemoglobin is 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. Id. The Board notes that in an October 2009 decision the Board remanded this issue to the RO with instructions to refer the Veteran's anemia to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation. Based on the record before the Board it appears this referral was not completed. However, in a March 2011 rating decision the RO granted the Veteran's claim for TDIU. By its nature, total individual unemployability includes any non-schedular consideration which would have been included in an extraschedural rating. Simply stated, the Veteran cannot receive more than 100 percent disability. As such, the Board finds that the RO substantially complied with the Board's remand instructions, and the Veteran was not harmed by the failure to refer her anemia for extraschedular consideration. See D'Arie's v. Peake, 22 Vet. App. 97 (2008). In the same March 2011 rating decision the RO also granted the Veteran an increased rating to 40 percent for her service-connected anemia. In this rating decision the RO noted that the Veteran's hemoglobin is within normal range, but she had a history of anemia which required several blood transfusions. As such, the RO determined the Veteran's disability picture was more accurately represented under an analogous rating to Diagnostic Code 7799-7716, and granted the Veteran a non-schedular 40 percent rating effective February 2007. The RO noted that a higher rating of 60 percent is not warranted unless transfusion of platelets or red cells are required at least once every three months, or infections recur at least every three months, as under the regulations for Diagnostic Code 7716. The Veteran is seeking a claim for increased rating of her anemia, currently rated at 40 percent. In support of her claim the Veteran has asserted that her anemia required several blood transfusions, and the accompanying hospital visits have caused her to miss substantial time at work. The Veteran continued that due to the frequent hospitalization for transfusions she is no longer employable. As such, the Veteran's main complaint regarding her anemia is the frequent blood transfusions required. The Board agrees with the RO that this complaint is more accurately measured under Diagnostic Code 7716, aplastic anemia, which considers the frequently of blood transfusions in rating the level of impairment. As will be discussed, the Board finds that a 40 percent impairment rating for the Veteran's anemia is appropriate. Treatment records reveal that the Veteran has been hospitalized on several occasions in order to receive a blood transfusion due to her anemia, for example in May 2008. On this date the Veteran presented with dizziness and lightheaded-ness, symptoms she experienced with previous episodes of anemia which required transfusions. The Veteran was given two units of packed red blood cells. Her hemoglobin increased overnight, and she was discharged the next day. Upon discharge her physician noted she was able to return to all pre-admission actives, including work. The following month, in June 2008, the Veteran was provided with a VA examination. The examiner found that the Veteran's anemia had become progressively worse since onset, and noted she was admitted to the hospital on three separate occasions in 2007 for blood transfusions. However, upon examination the examiner found the Veteran did not have any current physical signs of anemia. The examiner noted her history of lack of stamina, weakness, and fatigue due to anemia, as well as increased absenteeism from work. The examiner opined the Veteran's anemia affected her daily activities by preventing exercise, severely impacting her ability to do chores, shopping, recreation, or traveling, and moderately impacting her feeding, bathing, dressing, toileting, and grooming. In December 2009 the Veteran was provided with an additional VA examination. This examiner found the Veteran had three red blood cell transfusions in the last 12 months, most recently in May. The examiner also found the Veteran's anemia impacted her usual daily activities and resulted in increased absenteeism from work. The examiner opined that the Veteran's severe iron deficiency anemia would prevent her from maintaining substantially gainful employment. The examiner also noted that the Veteran refused surgical treatment for her bleeding uterine fibroids. The examiner cautioned that due to this refusal a return to the hospital for another blood transfusion was likely. The Board notes that the impact the Veteran's anemia has on her individual employability was specifically contemplated by the RO in granting the Veteran's claim for TDIU. As such, the Veteran's unemployability has already been addressed in her award of TDIU benefits and the Board will only address the proper rating of the severity of her anemia. Diagnostic code 7716 assesses impairment ratings based on the frequency at which blood transfusions are required. A 30 percent rating is awarded when transfusion of platelets or red cells occur at least once per year, but less than one every three months. A 60 percent impairment is assessed when transfusions of platelets or red cells are required at least once every three months. As discussed above the evidence of record establishes that the Veteran has required approximately three blood transfusions per year, which equates to about every four months. Therefore the Veteran's anemia has not required transfusions at least every three months, as contemplated by a 60 percent impairment rating. Therefore, the Board finds that the Veteran's anemia does not warrant a 60 percent analogous impairment rating at this time. Instead, the Board finds the RO's extraschedular rating of 40 percent impairment is appropriate. As such, the Veteran's claim for an increased rating for her anemia is denied. As discussed above, the Veteran has been granted TDIU, therefore an inferred TDIU claim under Rice is not applicable. Rice v. Shinseki, 22 Vet. App. 447 (2009). Similarly, the Board finds this issue does not need to be referred for consideration of an extraschedular rating. Back Disability The Veteran's original claim for entitlement to service connection for a low back disability was denied in an April 1994 rating decision which became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In April 2008 the Veteran filed a new claim for service connection of a low back disability, and asserted that her low back condition had worsened due to her service connected left knee disability. In an October 2009 decision the Board found this assertion constituted new and material evidence, re-opened the Veteran's claim, and remanded this issue for a VA examination to address the Veteran's concerns. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. As will be discussed below, the Board finds that the Veteran does not have a current low back disability for which benefits may be granted. Since filing her claim in April 2008 the Veteran has routinely received medical treatment at the VA facility for her anemia and other conditions, but it does not appear she complained of, or sought treatment for, a back disability during this time frame. In December 2009 she was provided a VA examination. At the examination the Veteran reported pain in the middle of her low back. She described the pain as aching which would flare up for a few hours at a time, approximately three to four times per week, and usually due to weather change. She reported her pain was alleviated with a pain patch, rest, or stretching. The examiner observed that the Veteran's posture appeared rigid and guarded, and she walked with a slow, guarded gait. Upon examination the examiner did not find any abnormal curvatures of the Veteran's spine, including gibbus, kyphosis, list, lumbar flattening, lordosis, scoliosis, or ankylosis. The examiner found the Veteran had active motor movement against full resistance in both hips, knees, and ankles with normal muscle tone. The Veteran's pain sensors and reflexes were all normal. The examiner then performed testing which revealed the Veteran's range of motion was reduced, which was not 'normal' for the Veteran. However, x-ray of the Veteran's spine revealed her spine was normal, with normal vertebral shape, size, and alignment. Based on these results the examiner opined that there was insufficient clinical evidence to warrant a diagnosis of any chronic disorder of the lumbar spine. The Board acknowledges that the Veteran's VA examination provides some evidence that she is experiencing the symptoms of a low back disability, specifically pain and limited range of motion. However, the examiner reviewed all of this information and opined that the Veteran does not currently have a low back disability. The opinion is supported by the Veteran's x-ray which revealed her spine was in a normal condition. As such, the weight of the medical evidence establishes that the Veteran has symptoms of a back disability, such as pain and limited motion, but does not establish she currently has a back disability which is causing the symptoms. While there is some evidence in the claims file that supports the Veteran's claim, including her statements and some treatment records, as well as the symptoms cited with the VA examination, the best evidence in this case, which the Board finds to be the most recent VA examination clearly finds that the Veteran does not have a back disability at this time. The examination was based on a detailed review of this record and objective medical testing. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a chronic disability. In this case the Veteran has established she is experiencing symptoms of a low back disability, but the evidence does not establish the presence of a current disability. Further, even if the Board assumes the Veteran has a back disability, the most recent examination, which failed to even find a back disability, would lead to evidence against the claim that her service connected problem has caused a back disability. No medical evidence supports this medical opinion from the Veteran that she has a back disability related to her service connected problem. Accordingly, service connection cannot be granted for symptoms of low back disability alone. The Veteran's claim for service connection of a back condition is therefore denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided to the Veteran on several occasions over the course of this over twenty year appeal, most recently in December 2009. This letter informed the Veteran of all the elements required by the Pelegrini II Court as stated above for all issues currently on appeal. The letter also informed the Veteran how disability ratings and effective dates were established for her low back condition, as well as what is required to establish service connection on a secondary basis and a claim for TDIU. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was scheduled for a hearing before the Board in September 2008, but she failed to appear for the scheduled hearing. Furthermore the requested development after the October 2009 remand has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed, appropriate VCAA notice of evidence necessary to substantiate a claim for service connection on a secondary basis was provided in December 2009. The Veteran was afforded an examination for her low back and cystic kidney disease. Additionally, the Board has already discussed that the failure to refer the Veteran's anemia for extraschedular evaluation did not prejudice the Veteran. Finally, the Veteran's claim for TDIU was granted, and therefore any potential failure of the VA to fulfill its duties in regards to this claim is harmless error. As such, the Board finds there has been substantial compliance with the previous remand orders. See D'Arie's v. Peake, 22 Vet. App. 97 (2008). The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability. Furthermore, neither the Veteran nor her representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for a compensable rating for cystic diseases of the kidney is denied. A rating in excess of 40 percent for the Veteran's anemia is denied. Veteran's claim for service connection for a low back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs