Citation Nr: 1311293 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-19 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE The propriety of the reduction of the rating for end stage renal failure with anemia, status post renal transplant from 100 percent to 30 percent. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from June 1992 to September 1992 and from June 1994 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the RO in Nashville, Tennessee, which reduced a 100 percent evaluation, assigned for endstage renal failure with anemia status post renal transplant, to 30 percent, effective October 1, 2008. The Veteran presented testimony before the undersigned Acting Veterans' Law Judge in March 2011. The transcript has been associated with the claims file. Following his hearing, the Veteran submitted additional evidence in support of his appeal. He has waived review of this evidence by the agency of original jurisdiction (AOJ). See Waiver Form dated March 25, 2011. The Veteran's written statements and testimony have raised a claim of entitlement to a rating in excess of 30 percent for the service-connected end stage renal failure with anemia, status post renal failure. This issue has not yet been adjudicated by the RO; therefore, it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. A July 2008 rating decision reduced the evaluation assigned the Veteran's end stage renal failure with anemia, status post renal transplant from 100 percent to 30 percent disabling, effective October 1, 2008. 2. At the time of the reduction of the Veteran's benefits, his 100 percent disability evaluation had been in effect for less than five years. 3. The rating for the Veteran's service-connected end stage renal failure with anemia status post renal transplant was reduced in compliance with VA regulations. CONCLUSION OF LAW The July 2008 rating decision discontinuing the 100 percent rating for end stage renal failure with anemia, status post renal transplant was proper. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 4.115a, Diagnostic Code 7530-7531 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants under the Veterans Claims Assistance Act (VCAA) codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The procedures applicable to reduction from a total (100 percent) rating to a lesser rating under 38 C.F.R. § 4.115b, are specified in that rating code, and require the schedular reduction to be conducted in accordance with 38 C.F.R. § 3.105. Section 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When these procedures are applicable, VA must comply with those provisions rather than the notice and duty provisions in the VCAA. See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)) (standards for review of evidence). As discussed below, VA has complied with the appropriate procedural requirements. Therefore, no further discussion of the VCAA with regard to this claim is required. Analysis The Veteran contends that the reduction of the disability rating for his end stage renal failure with anemia, status post renal transplant, from 100 percent to 30 percent, effective October 1, 2008, was not proper. The evidence reflects that the Veteran underwent a kidney transplant in May 2006, during active duty service. In a July 2006 rating decision, the RO granted service connection for end stage renal failure with anemia and assigned a 100 percent rating under Diagnostic Code 7530, from June 1, 2006. The 100 percent rating was continued in subsequent rating decisions issued in February 2007 and May 2007. A mandatory post-transplant VA genitourinary examination was conducted in September 2007 - more than one year following the Veteran's kidney transplant surgery. In a rating decision issued in November 2007, the Veteran was notified of the RO's intent to reduce the 100 percent rating for the service-connected kidney disability based on improvement in the disorder. Final action to reduce the 100 percent rating to 30 percent was taken pursuant to 38 C.F.R. § 3.105(e) in July 2008. The Veteran was informed of this decision by letter dated on July 31, 2008, and the reduction was made effective beginning October 1, 2008. The Veteran has appealed this reduction. The Board, however, finds that the reduction from 100 percent to 30 percent was proper. Thirty-eight C.F.R. § 3.105(e) provides that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. [The Board notes that the additional regulatory provisions of 38 C.F.R. § 3.344(a)(b) do not apply because the 100 percent rating had not been in effect for five years in this case. 38 C.F.R. § 3.344(c).] In this case, the notice requirements of 38 C.F.R. § 3.105(e) are met. By letter dated November 23, 2007, the Veteran was notified of the RO's intent to reduce the 100 percent rating for service-connected residuals end stage renal disease, status post kidney transplant based on the current residuals. He was also notified that he could request a personal hearing so that he could provide testimony on this matter, and that if he did not request a hearing or submit additional evidence within 60 days, the RO would make a decision based on the evidence of record. Thereafter, he was given at least 60 days in which to present additional evidence. 38 C.F.R. §§ 3.105(e), (i). The Veteran requested a hearing in correspondence received in December 2007. He was scheduled for a hearing, which was to be held in April 2008, but later cancelled his hearing request in correspondence received in April 2008. Final action to reduce the 100 percent rating to 30 percent was taken pursuant to 38 C.F.R. § 3.105(e) in a July 2008 rating decision. The Veteran was informed of this decision by letter dated on July 31, 2008, and the reduction was made effective beginning October 1, 2008. Based on a review of this procedural history, it appears that the RO complied with all of the requirements 38 C.F.R. § 3.105(e). The Veteran was notified of his rights. He was given an opportunity for a hearing and time to respond. Moreover, the reduction was made effective no sooner than permitted by current law and regulations (e.g. the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires). 38 C.F.R. § 3.105(e). Moreover, the Veteran has not asserted that these procedural provisions were not followed. Thus, the Board finds that the RO appropriately followed the procedural actions to accomplish the discontinuance of the 100 percent rating, which resulted in a reduction of the Veteran's benefits. The Board further finds that the evidence of record, at the time the reduction was implemented, supported the assignment of a 30 percent evaluation under Diagnostic Codes 7530 and 7531. Under Diagnostic Code 7530, chronic renal disease requiring regular dialysis is to be rating as renal dysfunction under 38 C.F.R. § 4.115a. Under Diagnostic Code 7531, the residuals of a kidney transplant are to be evaluated as 100 percent disabling following transplant surgery, and thereafter rated on the basis of renal dysfunction under 38 C.F.R. § 4.115a. The note following this diagnostic code indicates that the rating of 100 percent shall be assigned as of the hospital admission for transplant surgery and shall continue with a mandatory VA examination one year following hospital discharge. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). Renal dysfunction: A noncompensable rating is assigned for disability manifested by albumin and casts with history of acute nephritis; or, hypertension that is non-compensable under Diagnostic Code 7101. A 30 percent rating is assigned for disability manifested by 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 Diagnostic Code 7101. A 60 percent rating is assigned for disability manifested by 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 assigned for disability manifested by persistent edema and albuminuria with BUN [blood urea nitrogen] 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 assigned for disability requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a (2012). The criteria for evaluating hypertension are set forth under 38 C.F.R. § 4.104, Diagnostic Code 7101. A 10 percent evaluation is warranted for hypertension with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is warranted with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, and a 40 percent evaluation is warranted for hypertension with diastolic pressure predominantly 120 or more. 38 C.F.R. § 4.104, DC 7101 (2012). The September 2007 VA examination report showed that the Veteran continued to take immunosuppressive drugs for his kidney transplant, with residual complications of acne and rashes. He also reported fatigue and lethargy, but denied weakness. There had been no weight change. The BUN was 12 and the creatine level was 1.4 mg/dL. Blood pressure was 134/91. There were no residual urinary, cardiovascular, or voiding symptoms noted or reported. There also was no hydronephrosis, erectile dysfunction, or nephritis noted or reported. VA treatment records showed the Veteran was reportedly doing well on his current medications. His diastolic blood pressures were not shown to be predominantly 120 or more; his BUN levels never reached or exceeded 40 mg%, and his creatinine levels never reached or exceeded 4 mg%. Rather, the VA treatment records show the highest BUN level was 12, and the highest creatinine level was 1.2 mg/dL. In a letter dated in January 2008, the Veteran's physician at the VA organ transplant service indicated that the Veteran was currently stable with normal renal function status post transplant. The physician further noted that the Veteran had recovered very well from surgery, and was capable of returning to work. Private medical records from the Vanderbilt Medical Center dated through July 2008 showed the Veteran's hypertension was fairly well-controlled. His serum creatine levels averaged between 1.3 to 1.6 mg/dL. These records reflect that the Veteran's BUN levels never reached or exceeded 40 mg%, and his creatinine levels never reached or exceeded 4 mg%. Rather, his highest BUN level was shown to be 12, and the highest creatinine level was shown to be 1.6 mg/dL. Private treatment records from Dr. Wigger showed the Veteran's average systolic pressure readings were no higher than 130 and the diastolic pressure readings were averaged to be no higher than in the 90s. Furthermore, none of the evidence of record at the time the RO effectuated the 30 percent rating revealed persistent edema or albuminuria; or a definite decrease in kidney functioning; or hypertension that would have been rated as 40 percent disabling under diagnostic code 7101. As such, the criteria for a disability rating of 60 percent (the next higher rating available after 30 percent) were not more closely approximated. The medical evidence of record at the time also did not reveal any findings or subjective reports of generalized poor health characterized by weakness, anorexia or weight loss. Finally, the Veteran has not asserted, and the evidence does not show, that at the time of the effectuated reduction, he experienced renal dysfunction requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, or BUN more than 80 mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular, such that he continued to meet the schedular criteria for a 100 percent rating. Thus, effective October 1, 2008, the RO appropriately discontinued the 100 percent rating for the Veteran's end-stage renal failure with anemia, status post renal transplant because the RO followed the appropriate procedures when reducing the rating, and because the medical evidence at the time of the reduction supported no more than a 30 percent disability rating. Accordingly, the appeal is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against any finding that the discontinuance of the 100 percent rating was improper, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012. Finally, as noted in the introduction, the issue of entitlement to an increased rating, as opposed to whether a reduction was proper, was not certified to the Board. The Board will not therefore consider whether a rating in excess of 30 percent is warranted for the service-connected end stage renal failure with anemia, status post renal failure from October 1, 2008. That issue has been referred to the AOJ. ORDER The appeal challenging the propriety of the reduction of the rating for end stage renal failure with anemia, status post renal transplant from 100 percent to 30 percent and seeking restoration of such rating is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs