Citation Nr: 1313842 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 08-22 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating higher than 60 percent for nephropathy with hypertension, prior to June 15, 2011. 2. Entitlement to a rating higher than 80 percent for nephropathy with hypertension from June 15, 2011. 3. Entitlement to a separate compensable rating for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. These matters initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO, among other things, granted entitlement to service connection for nephropathy with hypertension and assigned a 30 percent rating, effective the July 12, 2005 date of claim. The Veteran timely appealed the initial rating assigned. Jurisdiction over this case was subsequently transferred to the VARO in Jackson, Mississippi, and that office forwarded the appeal to the Board. In March 2011, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. In December 2011, the Board remanded the claims to the RO, via the Appeals Management Center (AMC). For the reasons stated below, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2012, the RO granted an increased initial rating of 60 percent for nephropathy with hypertension, also effective June 15, 2005 and granted an increased rating of 80 percent for this disability effective June 15, 2011. As the Veteran continues to seek higher ratings for his nephropathy with hypertension, the Board has bifurcated and recharacterized the issues on appeal to take account of the staged rating, as explained below. Review of electronic documents associated with the claims file reveal additional records that are essentially cumulative in nature. It is also noted that by rating of March 2013 service connection was granted for congestive heart failure with neuropathy and hypertension. A 100 percent rating was assigned from June 2012. There has been no disagreement with that action and it is not otherwise before the Board. Nothing decided below should be taken as having any impact on that decision. FINDINGS OF FACT 1. The evidence is approximately evenly balanced as to whether, prior to June 15, 2011, symptoms of the Veteran's nephropathy with hypertension more nearly approximated persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 2. Symptoms of the Veteran's nephropathy with hypertension did not require regular dialysis or preclude more than sedentary activity at any time during the appeal period beginning on July 12, 2005. 3. Diastolic pressure has not been predominantly 100 or more or systolic pressure predominantly 160 or more throughout the appeal period. 4. Chronic renal disease has not progressed to the point where regular dialysis is required. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial rating of 80 percent, but no higher, for nephropathy with hypertension, prior to June 15, 2011, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.115, 4.115a (2012). 2. The criteria for a rating higher than 80 percent for nephropathy with hypertension have not been met ay any time during the appeal period beginning on July 12, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.115, 4.115a. 3. The criteria for a separate compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.104, Diagnostic Code (DC) 7101, 4.115. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As noted above, the claims for higher ratings for nephropathy with hypertension arise from the Veteran's disagreement with ratings assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to these claims is unnecessary. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records, as well as the records of the Social Security Administration's (SSA's) disability determination. In its December 2011 remand, the Board instructed that the the RO/AMC obtain copies of all outstanding treatment records after contacting the Veteran and requesting the necessary information and authorizations. The AMC sent the Veteran a January 2012 letter requesting the relevant information and authorizations and obtained all outstanding treatment records. The AMC thus complied with the Board's remand instructions and its duty to assist in this regard. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Veteran has been afforded multiple VA examinations as to the severity of his nephropathy with hypertension, most recently in January 2012 pursuant to the Board's December 2011 remand instructions. For the reasons stated below, the VA examinations including the January 2012 were adequate, and the AMC complied with the Board's remand instructions in this regard as well. Id. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for higher ratings for nephropathy with hypertension and for a separate compensable rating for hypertension are thus ready to be considered on the merits. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged, as was done by the RO/AMC in this case. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, however, as explained below, although the Veteran's symptoms have varied somewhat during the appeal period, a uniform 80 percent rating is proper because symptoms have more nearly approximated the criteria for such a rating. Ratings of the genitourinary system, including renal dysfunction, are set forth at 38 C.F.R. § 4.115a. Under this regulation, a 30 percent rating is warranted for renal dysfunction with 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 38 C.F.R. § 4.104, DC 7101. A 60 percent rating is warranted for renal dysfunction with constant albuminuria with some edema, or definite decrease in kidney function, or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The maximum 100 percent rating is warranted where regular dialysis is required or the renal dysfunction precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Under DC 7101, which governs ratings of hypertensive vascular disease (hypertension and isolated systolic hypertension), a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. 10 percent is also the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent evaluation is assignable for diastolic pressure predominantly 120 or more. A 60 percent evaluation is assignable for diastolic pressure predominantly 130 or more. There is evidence dated between July 12, 2005 and June 15, 2011 of symptoms listed in the criteria for both a 60 percent rating and an 80 percent rating. There are multiple VA and private treatment notes dated prior to June 15, 2011 showing edema, albuminuria, and generalized poor health with symptoms such as weakness and weight loss. For example, on the October 2005 VA-authorized examination, weight loss and loss of strength were noted. Private treatment notes beginning in 2007 contain consistent findings of lower extremity edema. Moreover, while on the October 2005 VA-authorized examination BUN was 20 mg and creatinine was 1.3 mg, in August and September 2008, BUN was 67 and 61 mg, respectively. These BUN readings are well within the range of the 40 to 80 mg listed in the criteria for an 80 percent rating. There is other evidence indicating that the Veteran did not have the symptomatology required for an 80 percent rating, such as the indication in the January 2009 VA diabetes examination that there was no lethargy, anorexia, weakness, or weight change related to renal dysfunction. The Board notes that, in its August 2012 decision granting entitlement to a TDIU, the AMC found that the Veteran had a history of, among other things, persistent edema, lethargy, and weakness. As there is evidence of symptoms in the criteria for both a 60 and 80 percent rating throughout the appeal period, the Board will resolve the doubt created by this approximate balance of evidence in favor of the Veteran by finding that the symptoms more nearly approximated the criteria for an 80 percent rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. An initial rating of 80 percent is therefore warranted for nephropathy with hypertension prior to June 15, 2011. A rating higher than 80 percent is not, however, warranted, because at no time during the appeal period that began on July 12, 2005 have the symptoms of the Veteran's nephropathy with hypertension more nearly approximated the criteria for a 100 percent rating. Neither lay evidence nor the VA or private treatment records nor the VA examination reports reflect that the Veteran has been precluded from performing more than sedentary activity or that regular dialysis has not been required. Most recently, on the January 2012 VA examination, the examiner was given an opportunity to check a box next to a multitude of symptoms. He checked proteinuria, edema, weight loss, lethargy, weakness, and limitation of weakness, but did not check able to perform only sedentary activity. This reflects that the examiner, who reviewed the claims file, considered all of the evidence, and specifically determined that the Veteran did not meet this criterion for a 100 percent rating. The examiner also checked the box indicating that the Veteran did not require regular dialysis. As the preponderance of the evidence thus reflects that the Veteran has not required regular dialysis or been precluded from more than sedentary activity by his renal dysfunction, the benefit of the doubt doctrine is not for application and a rating higher than 80 percent is not warranted at any time during the appeal period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Separate Compensable Rating for Hypertension The Veteran has requested a separate compensable rating for his hypertension. As noted above, a compensable rating for hypertension requires symptoms that approximate either diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, and a 10 percent rating is the minimum warranted for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The VA and private treatment records reflect that the Veteran requires continuous medication for control of his hypertension. However, as conceded by the Veteran's representative in the January 2013 brief, "It does not appear that the diastolic readings were predominantly 100 or more." On review of the evidence, the Board agrees with this assessment, as blood pressure readings throughout the appeal period have been mostly below 160 systolic and below 100 diastolic, and there is no need for the Board to recount each of these readings. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (there is no requirement that each piece of evidence submitted by the Veteran or obtained on his behalf be discussed in detail). In addition, 38 C.F.R. § 4.115 provides that, with regard to nephritis, in the event that chronic renal disease has progressed to the point where regular dialysis is required, any coexisting hypertension or heart disease will be separately rated. In this case, as shown above, regular dialysis is not required. As the regulation indicates hypertension will be separately rated when regular dialysis is required, it may correspondingly be inferred that hypertension will not be separately rated when regular dialysis is not required. Moreover, as hypertension is listed in the criteria for rating renal dysfunction, granting a separate rating in these circumstances would constitute pyramiding, which under VA regulations is to be avoided. See 38 C.F.R. § 4.14. For the foregoing reasons, the preponderance of the evidence reflects that a separate compensable rating is not warranted for hypertension. The benefit-of-the-doubt doctrine is therefore not for application, and this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Extraschedular and TDIU As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's nephropathy with hypertension are fully contemplated by the applicable rating criteria. As shown above, the symptoms of the Veteran's nephropathy with hypertension as indicated in both the lay and medical evidence correspond to those in the criteria for rating renal dysfunction, and warrant a uniform 80 percent rating. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required, and referral for consideration of an extraschedular rating for nephropathy with hypertension is not warranted. 38 C.F.R. § 3.321(b)(1). In addition, while the Veteran's nephropathy with hypertension has significantly impacted his employment, the AMC in August 2012 granted a TDIU effective November 21, 2007, the day following the Veteran's last day of work, and there is therefore no basis to consider a claim for TDIU as part of the ratings claims in this case, or to consider whether a TDIU is warranted prior to November 21, 2007. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating of 80 percent for nephropathy with hypertension, prior to June 15, 2011, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating higher than 80 percent for nephropathy with hypertension is denied. Entitlement to a separate compensable rating for hypertension is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs