Citation Nr: 1314346 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 07-00 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent until September 21, 2009 and in excess of 20 percent from September 22, 2009 for service-connected thin glomerular basement membrane disease of the kidney. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which, inter alia, granted service connection for thin glomerular basement membrane disease of the kidney. This matter was previously before the Board and was remanded in January 2009 and May 2010. FINDINGS OF FACT 1. Prior to January 9, 2007, the Veteran's service-connected kidney disease was manifested by normal laboratory results with no evidence of urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times a day; urinary tract infections; marked obstructive voiding symptoms such as hesitancy or slow or weak stream; daytime voiding interval between one and two hours; awakening to void three to four times per night; or, any hypertension associated with kidney disease. 2. Since January 9, 2007, the Veteran's service-connected kidney disease has been manifested by the wearing of absorbent materials which must be changed two to four times a day, with no evidence of constant albuminuria with some edema; definite decrease in kidney function; hypertension associated with kidney disease; or the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to January 8, 2007 for service-connected thin glomerular basement membrane disease of the kidney have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Codes 7500-7542 (2012). 2. Effective January 9, 2007, the criteria for a disability rating of 40 percent, but no higher, for service-connected thin glomerular basement membrane disease of the kidney have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Codes 7500-7542 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The VCAA notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). Since the May 2006 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess, 19 Vet. App. at 490-91. A December 2006 Statement of the Case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond and supplement the record. Moreover, she has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). All relevant evidence necessary for an equitable resolution of the issues on appeal has also been identified and obtained, to the extent possible. The evidence of record includes the Veteran's service treatment records (STRs); the reports of July 2005, November 2005, January 2007, September 2009, February 2011 and September 2011 VA examinations; and private treatment records. The Veteran has not identified any other outstanding relevant evidence. Additionally, the Veteran was provided an opportunity to set forth her contentions during the February 2008 Board hearing before the undersigned. The Court of Appeals for Veterans Claims has held that at a hearing on appeal, a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the February 2008 hearing, the undersigned set forth the issues to be discussed at the hearing and sought to identify any further development that was required to help substantiate the Veteran's claim. Specifically, the Veterans Law Judge asked about the types of symptoms she experienced and treatment the Veteran received for her service-connected kidney disability. She also encouraged the Veteran to submit any records that the Veteran thought were relevant and offered to hold open the record for an additional period of time to allow the Veteran to obtain any additional records. Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Analysis Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). A request for an increased rating must be viewed in light of the entire relevant medical history. 38 C.F.R. § 4.1 (2012); Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). Claims for higher ratings contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a 20 percent evaluation for her thin glomerular basement membrane disease of the kidney from September 22, 2009. Prior to September 22, 2009, the Veteran was in receipt of a 10 percent evaluation for this disability. Thin glomerular basement membrane disease of the kidney is not specifically listed in the rating schedule and, therefore, it is rated by analogy. When an unlisted condition is encountered it is permissible to rate it under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). For both time periods, the RO ostensibly rated the disability by analogy under Diagnostic Code 7502; however, disability ratings of 10 or 20 percent are not available under this DC. 38 C.F.R. § 4.115b, Diagnostic Code 7502 (2012). Other potentially applicable DCs (DCs 7500-7542) instruct the rater to rate the disability under either renal dysfunction, voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infection, depending on the predominant area of dysfunction. 38 C.F.R. § 4.115a (2012). For renal dysfunction, a 0 percent disability is warranted when there is albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101. A 30 percent disability rating is warranted when there is albumin (constant or recurring) with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. A 60 percent disability rating is warranted when there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. 38 C.F.R. § 4.115a (2012). For voiding dysfunction, a 20 percent disability rating is warranted when the disability requires wearing of absorbent materials which must be changed less than two times per day. A 40 percent disability is warranted when the disability requires wearing of absorbent materials which must be changed two to four times per day. A 60 percent disability rating is warranted when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a (2012). For urinary frequency, a 20 percent disability rating is warranted for daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent disability rating is warranted for daytime voiding interval less than one hour, or; awakening to void five or more times per night. There is no higher rating available for urinary frequency. 38 C.F.R. § 4.115a (2012). For obstructed voiding, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. There is no higher rating available for obstructed voiding. 38 C.F.R. § 4.115a (2012). For urinary tract infection, recurrent symptomatic infection requiring drainage or frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating. This is the highest rating available under this category. 38 C.F.R. § 4.115a (2012). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his or her current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). As detailed below, the Board finds that the Veteran's kidney disability is predominantly manifested by voiding dysfunction. In order to ensure that the Veteran's disability is rated according to the predominant manifestations of dysfunction, and to ensure that the Veteran is awarded the highest rating available that accurately captures the symptoms of her kidney disability, the Board finds the Veteran's current kidney disability is more properly rated under DC 7512 for cystitis, which instructs the rater to rate the disability as voiding dysfunction. For the reasons explained below, the Board finds that when rating the Veteran's kidney disability on symptoms of voiding dysfunction, a 40 percent disability rating, but no higher, is warranted for the Veteran's service-connected kidney disease from January 9, 2007 (date of VA examination) and that a disability rating in excess of 10 percent is not warranted prior to January 9, 2007. Additionally, the Board notes that the Veteran's current disability ratings for her kidney disability have been in effect for less than 10 years. As such, they are not considered "protected ratings" under 38 U.S.C.A. § 1159 and changing the DC under which the disability is rated does not result in an impermissible severance of service connection. See generally Read v. Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011). The evidence of record includes multiple VA examination reports, VA treatment records, and private treatment records. A July 2005 VA "Gynecological Conditions and Disorders of the Breast" examination report reflects that the Veteran reported no abnormal bladder symptoms. She did report a history of proteinuria, but denied any frequent urinary tract infections. A November 2005 VA "Joints" examination report reflects that the Veteran reported a history of proteinuria due to "thin membrane syndrome", worsened with exercise. She denied incontinence and stated that she had anemia due to chronic proteinuria from thin membrane disease in the kidney. A January 9, 2007 VA "Genitourinary" examination report reflects that computed tomography (CT) of the kidneys showed nephrocalcinosis of the left kidney with no evidence of hydronephrotic changes and no hydroureter. The Veteran reported a history of kidney pain and blood in her urine with physical activity. She reported current, almost daily, incontinence with physical activity or coughing. She denied constant renal colic, but noted that if she is unable to urinate every 30 minutes or so, she will experience kidney and bladder pain. She denied experiencing frequent infections and said she had never had renal or bladder stones. She did report a remote history of kidney infections with the last one over 10 years ago. She denied hospitalizations for this problem and noted that her only dietary restriction was avoidance of spicy food. She reported being limited to using narcotic pain relievers as other pain relievers caused kidney pain. She stated that her only routine procedure is 24-hour urine testing for blood urea nitrogen and creatinine every six months. She reported both laboratory results are always "highly elevated." The Veteran denied lethargy, weakness, anorexia, and weight changes (gain or loss). On physical examination, the Veteran was alert, oriented, pleasant and in no acute distress. The diagnosis was history of thin glomerular basement membrane disease with normal CT and normal labs on examination. In October 2007, the Veteran complained of abdominal pain. A kidney ultrasound biopsy (KUB) revealed two 3 mm calcifications overlying the left kidney which correlated clinically for left-sided kidney stones. Otherwise, the rest of the examination of the abdomen showed no other acute abnormality. A November 2007 treatment record shows that the Veteran denied experiencing polyuria, nocturia, urinary incontinence or dysuria. She also denied fatigue and loss of appetite. A January 2008 letter from R. B., M.D., reflects that she was found to have two stones in her left kidney. A February 2008 treatment note reflects that the Veteran denied further episodes of flank or abdominal pain since the previous autumn. A September 2009 VA examination report reflects that the Veteran reported a history of "accidental loss of urine" for approximately seven years, worse in the past two to three years, with increasing severity in the last year. The Veteran reported that she wears a perineal pad which she must replace two to three times daily. She added that she has stress urinary incontinence with coughing or sneezing for the past four years. The impression was urinary incontinence by patient history and history of kidney disease. A February 2011 VA examination report from a nurse practitioner (NP) notes that the Veteran has an unusual and distinct nephrology disease. Laboratory findings were within normal limits. The NP recommended that the Veteran be evaluated by a nephrologist because she did not feel she was qualified to make a determination regarding the progression of the Veteran's disease. A September 2011 VA examination report (signed by a nephrologist) reflects that the Veteran reported "some worsening" of urinary incontinence. She stated that she was unaware of any stones passage. She believed that her urine was pretty concentrated despite drinking large quantities of water daily. She reported sporadic hematuria which worsened with exertion and exercise. She also noted symptoms of "urge incontinence" and frequency and urgency without significant voiding. She reported feeling well with a good appetite and no weight loss. She reported nocturia two to three times a night, with no dysuria. On examination, there was no tenderness to the kidneys and her abdomen was soft with normal bowel sounds. The examiner noted that the Veteran had a history of hematuria attributable to thin glomerular abnormality and her history of renal parenchymal disorder. He stated that this qualified as stage 1 chronic kidney disease. He noted that worsening symptoms currently involve her issues with bladder control and urgency, frequency (which may be partially due to increased intake of fluids for history of stones). The examiner opined that the Veteran would always have hematuria and that worsening severity of hematuria does not necessarily imply worsening of renal function. He noted that her creatinine and glomerular filtration rate (which reflect the Veteran's kidney function) were better than they were in 2007. He also noted there was no documented trend of worsening hypertension, which would otherwise be seen with progressive renal dysfunction. He further added that no chronically abnormal electrolyte number or albuminuria/microalbuminuria had been noted on review and that the Veteran was not anemic. He concluded that there was no evidence of symptoms of advance renal insufficiency. A "Kidney Conditions (Nephrology) Disability Benefits Questionnaire", completed by the same examiner in September 2011, reflects that the Veteran has been diagnosed with glomerulonephritis, nephrolithiasis, and urinary incontinence. The questionnaire reflects that the Veteran has renal dysfunction but does not require dialysis or have any "signs or symptoms" due to renal dysfunction. The examiner noted that the Veteran did not have any hypertension or heart disease due to renal dysfunction or any kidney condition. The examiner also indicated that the Veteran had urolithiasis located in the kidney and has had diet and drug therapy for this condition, but no invasive or non-invasive procedures. The examiner stated that the Veteran had no signs or symptoms due to urolithiasis and no symptoms or attacks or colic. The examiner also stated that the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infection, kidney transplant or removal, benign or malignant neoplasm related to any kidney diagnosis, scars related to any kidney diagnosis or any other pertinent physical findings, complications, conditions, signs or symptoms. The examiner noted that pelvic CT revealed multiple stones in her left kidney, unchanged from January 2007. From September 22, 2009, the Veteran is in receipt of a 20 percent disability rating for her service-connected kidney disease. As noted above, genitourinary disabilities are rated according to the predominant dysfunction, whether it be renal dysfunction, voiding dysfunction, urinary frequency, obstructed voiding, or urinary tract infection. The Board will consider the rating criteria under each area of dysfunction to determine if an increased disability is warranted. With respect to voiding dysfunction, the Board notes that at the January 9, 2007 VA examination, the Veteran reported almost daily incontinence with physical activity or coughing. Although she denied urinary incontinence in November 2007, a September 2009 VA examination report reflects that the Veteran reported a history of "accidental loss of urine" for approximately seven years, worse in the past two to three years with increasing severity in the last year. She also reported that she has to wear a perineal pad which she must replace two to three times daily. The impression was urinary incontinence by patient history and history of kidney disease. A September 2011 VA examination report reflects that the Veteran reported symptoms of "urge incontinence" and frequency and urgency without significant voiding. The examiner noted that worsening symptoms currently involve her issues with bladder control and urgency/frequency. After resolving any benefit of the doubt in favor of the Veteran, the Board finds that a 40 percent disability rating is warranted for voiding dysfunction as the Veteran requires the use of absorbent materials which must be changed two to four times a day. See September 2009 VA examination report. The Board notes that the Veteran reported urinary incontinence as early as January 9, 2007, and that she reported a two to three year history of "accidental loss of urine" in 2009. As such, the Board finds that the 40 percent disability rating under voiding dysfunction is warranted effective January 9, 2007. The Board next finds that a disability rating in excess of 40 percent is not warranted during this time period. With respect to rating the disability under voiding dysfunction, there is no evidence of the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day in order to warrant a 60 percent disability rating. As to other potentially applicable DCs for the genitourinary system, there is no evidence of constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101 to warrant a disability rating in excess of 40 percent under renal dysfunction. In fact, although the Veteran reports some edema, the evidence shows normal laboratory findings throughout the course of the appeal. Moreover, the 2011 VA examiner determined that no chronically abnormal albuminuria/microalbuminuria had been noted on review, there were no symptoms of advanced renal insufficiency, and that the Veteran did not have any hypertension or heart disease due to renal dysfunction or any kidney condition. Finally, the Board observes that there are no disability ratings in excess of 40 percent available under the criteria for urinary frequency, obstructed voiding, or urinary tract infection. As such, the Board finds that a 40 percent disability rating, but no higher, is warranted under DC 7512 from January 9, 2007 for the Veteran's service-connected kidney disability. Turning to the period prior to January 9, 2007, the Board must now determine if a disability rating in excess of 10 percent is warranted for this time period. The evidence shows that in July 2005, the Veteran reported no abnormal bladder symptoms. She did report a history of proteinuria but denied any frequent urinary tract infections. A November 2005 VA examination report reflects that the Veteran reported a history of proteinuria, but denied incontinence and stated that she had anemia due to chronic proteinuria from thin membrane disease in the kidney. Initially the Board notes that although the Veteran reported anemia during this time period, there is no clinical evidence of anemia as all laboratory findings were within normal limits. With respect to rating her disability as renal dysfunction, the Board finds that a disability in excess of 10 percent is not warranted as there is no evidence of albumin (constant or recurring) with hyaline and granular casts or red blood cells; or transient or slight edema or hypertension at least 10 percent disabling under DC 7101 in order to warrant the next higher 30 percent disability rating. Although the Veteran does report some edema, the medical evidence shows normal laboratory results throughout the course of the Veteran's appeal and no medical professional has indicated that the Veteran has hypertension associated with her kidney disease. A disability rating in excess of 10 percent is not warranted for voiding dysfunction. First, there is no evidence of requiring the wearing of absorbent materials which must be changed less than 2 times per day. Further, the Veteran denied urinary incontinence at the November 2005 VA examination. A disability rating in excess of 10 percent is not warranted for urinary frequency as the Veteran denied any abnormal bladder symptoms in July 2005 and there is no evidence of daytime voiding interval between one and two hours, or; awakening to void three to four times per night. As to rating her disability under the criteria for urinary tract infections, the Board finds that a disability rating in excess of 10 percent is not warranted as there is no evidence of recurrent symptomatic infection requiring drainage or frequent hospitalization in order to warrant the next higher rating of 30 percent (in fact, the Veteran expressly denied urinary tract infections). A disability rating in excess of 10 percent is also not warranted for obstructed voiding as there is no evidence of urinary retention requiring intermittent or continuous catheterization in order to warrant the next higher rating of 30 percent (in fact, the Veteran denied any abnormal bladder symptoms in July 2005). In sum, the Board finds that a disability rating in excess of 10 percent is not warranted for the time period prior to January 9, 2007. The Board notes that an extraschedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluations in this case are not inadequate. Evaluations in excess of those assigned are provided for certain manifestations of the Veteran's service-connected kidney disability but the evidence reflects that those manifestations, to include kidney-related hypertension, use of absorbent materials that must be changed more than 4 times a day, urinary retention requiring catheterization, or recurrent urinary tract infections, are not present. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected kidney disability, to include her complaints of urinary leakage. In short, there is nothing in the record to indicate that this service-connected disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. In fact, the record reflects that the Veteran continues to work full time as an optician. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Overall, the evidence of record does not support an initial rating in excess of 10 percent prior to January 8, 2007. It does support a rating of 40 percent, but no higher, from January 9, 2007, for the Veteran's service-connected kidney disability. As such, the appeal is denied in part and granted in part. Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Veteran has consistently reported throughout the course of the appeal that she works full-time as an optician. Therefore, the Board finds that a claim for TDIU has not been raised by the Veteran or the record. ORDER A disability rating in excess of 10 percent is not warranted for the Veteran's service-connected thin glomerular basement membrane disease of the kidney prior to January 8, 2007. To this extent, the appeal is denied. Effective January 9, 2007, a disability rating of 40 percent, but no higher, is warranted for the Veteran's service-connected thin glomerular basement membrane disease of the kidney. To this extent, the appeal is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs