Citation Nr: 1324842 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-38 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial compensable rating for cysts of the right kidney. 2. Entitlement to an initial compensable rating for a right fifth finger disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to January 2008. This appeal to the Board of Veterans' Appeals (Board) is from a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for cysts of the right kidney and for a right fifth finger disability, and assigned initial noncompensable ratings for each disability, retroactively effective from February 1, 2008, the day following the date of the Veteran's separation from service. See 38 C.F.R. § 3.400(b)(2). The Veteran wants higher initial ratings for his right kidney cysts and right fifth finger disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been variances in the severity of the disability, in other words, times when it has been worse than at others). In February 2013, the Board remanded this case for additional development. With respect to the issue of entitlement to an initial compensable rating for cysts of the right kidney, the purposes of this remand have been met and the case is ready for appellate consideration. In regard to the issue of entitlement to an initial compensable rating for a right fifth finger disability, for the reasons explained below, it is again necessary to return this issue to the RO for further development. This issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record does not establish the Veteran's cysts of the right 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. CONCLUSION OF LAW The criteria for an initial compensable rating for cysts of the right 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). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate 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). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. The Board finds that VA satisfied these obligations. Duty to Notify VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in February 2008, July 2008, and March 2013 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim and of his and VA's respective responsibilities in obtaining this supporting evidence. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will obtain; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The United States Court of Appeals for Veterans' Claims (Court) has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) therefore requires notice of all five of these elements, so including concerning the "downstream" disability rating and effective date in the event the underlying claim for service connection is granted. See id. at 486; Quartuccio, 16 Vet. App. at 187. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in February 2008, July 2008, and March 2013 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the February and July 2008 letters also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, ideally, VCAA notice should be provided prior to an initial decision on a claim by the Agency of Original Jurisdiction (AOJ), which in this instance is the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Written notice was provided in February and July 2008, prior to the appealed from rating decision, along with the subsequent notice provided in March 2013, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in February 2012, April 2012, and May 2013 supplemental statements of the case (SSOCs) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby. These readjudications rectify ("cures") the timing defect in the provision of the notice because they preserve the intended purpose of the notice in that the Veteran is still given ample opportunity to participate effectively in the adjudication of the claim. Id. During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), holding that VA needed to provide a greater degree of specificity with respect to notice of the criteria necessary for an increased rating. However, this decision later was vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), indicating VA need only provide generic notice and need not apprise the Veteran of alternative diagnostic codes or to present evidence as to how his disabilities affect his daily-life experiences. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Also, since this claim for a higher initial rating for cysts of the right kidney is a "downstream" issue arising out of the granting of service connection for this disability, Vazquez notice was never required. See VAOPGCPREC 8-2003 (Dec. 22, 2003). In this circumstance, the claim as it arose in its initial context, for service connection, has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). So once a Notice of Disagreement (NOD) has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and statement of the case (SOC) control as to the further communications with the appellant, including as concerning what evidence is necessary to establish a more favorable decision with respect to this downstream elements of the claim. Id.; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). And the Veteran was provided this required SOC, also an SSOC discussing this downstream claim for a higher initial (compensable) rating for his cysts of the right kidney, citing the applicable statutes and regulations, and providing reasons and bases for assigning an initial noncompensable rating and no greater rating. He therefore has received all required notice concerning his claim. Moreover, he has not alleged any undue prejudice in the notice provided, either in terms of the timing or content of it. And as the pleading party attacking the agency's decision, he has this burden of proof of not only establishing the occurrence of such error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. He has not made any such pleading or allegation. See Shinseki v. Sanders, 129, S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence, and the Veteran received VA examinations in October 2008, July 2010, May 2012, and April 2013, which were thorough in nature and adequate for the purposes of deciding this claim. The aforementioned VA examinations revealed findings that are adequate for rating the Veteran's cysts of the right kidney. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. The Board also notes substantial compliance with the remand directives in its previous remand in February 2013. Stegall v. West, 11 Vet. App. 268 (1998). In the February 2013 remand, the Board noted that in a May 2012 VA examination, the examiner determined that the Veteran's kidney cyst was asymptomatic. However, the examiner based that finding on diagnostic testing that was conducted in July 2010, and did not report any urinalysis lab results. Thus, upon remand, the RO was to afford the Veteran a VA examination in order to determine the current symptoms and severity of his service-connected right kidney cysts. All tests and studies deemed necessary were to be performed, including lab and urinalysis studies. Pursuant to the remand, the Veteran underwent a VA examination in April 2013. Although the examiner noted that urinalysis was not provided, he actually did provide urinalysis tests results and such results were reported to be negative. Therefore, because the Veteran underwent a VA examination in April 2013, which was thorough in nature and adequate for the purposes of deciding this claim, the Board finds that the RO has complied with the instructions from the Board's February 2013 remand by providing the Veteran with a VA examination, as directed. Id. Therefore, the duty to assist has been satisfied, and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. 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. II. Factual Background The Veteran's service treatment records show that in July 2007, he had an ultrasound taken of his abdomen. The ultrasound was reported to show a cluster of small cysts in the right kidney. The records include a private medical report from the Riverview Urology Clinic, dated in January 2008. In the report, a physician noted that in April 2007, the Veteran had developed left subcostal sharp pressure discomfort. Subsequently, the Veteran underwent an ultrasound which showed two cysts on the right kidney. There were no cysts on the left kidney. The Veteran's pain would come and go. The physician opined that it was extremely unlikely that the Veteran's cysts were causing discomfort. Rather, the physician indicated that the Veteran's discomfort was caused by splenic flexure syndrome. [The Board notes that service connection for splenic flexure syndrome was granted in a January 2011 rating action.] The upper, mid, and lower abdominal examination was negative. The impression was of benign cysts on the right kidney measuring about 2 cm each. There was no evidence of ureteral changes or hydronephrosis. In February 2008, the Veteran filed a claim of entitlement to service connection for cysts of the right kidney. A VA examination was conducted in October 2008. The Veteran denied any hematuria, nausea, vomiting, constipation, or diarrhea. The Veteran's weight had been stable with a good appetite. Occasionally, he experienced pain in his left and right upper quadrants. He took Metamucil to relieve the pain. Following the physical examination, the Veteran was diagnosed with small cysts of the right kidney. The examiner noted that the Veteran had normal renal function and normal urinalysis. In a November 2008 rating action, the RO granted service connection for cysts of the right kidney. The RO assigned a noncompensable disability rating under Diagnostic Code 7599-7533, effective from February 1, 2008, for the Veteran's service-connected cysts of the right kidney. A VA examination was conducted in July 2010. The examiner stated that initial computerized tomography (CT) scans had shown that the Veteran had three cysts of the right kidney. Follow-up CT scans had showed no change. The Veteran had never been symptomatic of the right kidney and all tests of urine and serum kidney function had been reported to be normal. The Veteran denied blood in his urine and he denied any history of kidney stones. There was no history of renal dysfunction or renal failure. The Veteran did not have any cardiovascular symptoms. He had worked as an aircraft mechanic. The Veteran was not currently employed because he had recently moved. Following the physical examination, the Veteran was diagnosed with cystic lesions of the right kidney. The Veteran's cysts of the right kidney did not have any significant effects on his occupation or on his usual daily activities. In May 2012, the Veteran underwent a VA examination. The examiner stated that the Veteran had not had any problems with the cysts of the right kidney, renal function, or abdominal pain due to the cysts. The Veteran did not take any medication for his cysts of the right kidney. The examiner indicated that the Veteran did not have any renal dysfunction. The Veteran also did not have any hypertension and/or heart disease due to renal dysfunction or caused by any kidney condition. In addition, the Veteran did not have any kidney and ureteral or bladder calculi (urolithiasis). He did not have a history of recurrent symptomatic urinary tract or kidney infections. The Veteran had not had a kidney transplant or removal, and he did not have benign or malignant neoplasm or metastases related to his cysts of the right kidney. In July 2010, the Veteran had a CT of his abdomen. The CT was interpreted as showing a benign right renal cyst. The examiner diagnosed the Veteran with cystic kidney disease. He stated that the Veteran's cystic kidney disease did not impact his ability to work. A VA examination was conducted in April 2013. The Veteran denied any symptoms of his right kidney cysts. The examiner stated that the Veteran did not take any medication for his right kidney cysts. In addition, the Veteran did not have renal dysfunction. The Veteran also did not have any urolithiasis or urinary tract/ kidney infections. He did not have a history of recurrent symptomatic urinary tract or kidney infections. The Veteran had not had a kidney transplant or removal, and he did not have benign or malignant neoplasm or metastases related to his cysts of the right kidney. Although the examiner noted that urinalysis was not provided, he actually did provide urinalysis tests results and such results were reported to be negative. The examiner diagnosed the Veteran with cystic kidney disease. He stated that the Veteran's cystic kidney disease did not impact his ability to work. III. Analysis Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) codified in 38 C.F.R. Part 4 (2012), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). As already alluded to, as the Veteran took issue with the initial rating assigned for his cysts of the right kidney following the granting of service connection for this disability, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as a "staged" rating. See Fenderson, 12 Vet. App. at 125-26. Thus, the Board must evaluate the relevant evidence since February 1, 2008, the effective day of the grant of service connection. The Veteran's service-connected disability, cysts of the right kidney, is not listed on the Rating Schedule, and the RO assigned Diagnostic Code 7599 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2012). The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.71a, Diagnostic Code 7533. Diagnostic Code 7533 provides 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 his cysts of the right kidney. However, there is no evidence of record showing that the Veteran has any renal insufficiency. In fact, in the July 2010, May 2012, and April 2013 VA examinations, the examiners specifically noted that the Veteran did not have any renal dysfunction. In addition, the evidence of record is negative for any evidence showing that the Veteran has been diagnosed with hypertension. In the May 2012 VA examination, the examiner specifically indicated that the Veteran did not have any hypertension and/or heart disease due to renal dysfunction or caused by any kidney condition. Although the Veteran has cysts of the right kidney, there is no evidence of record showing that he has experienced the symptoms of a compensable rating for cystic kidney disease, including constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema, or hypertension. 38 C.F.R. § 4.115a. Thus, 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. In light of the above, the Board finds that an initial compensable rating for cysts of the right kidney is not warranted at any time since the initial grant of service connection. See Fenderson, 12 Vet. App. at 125-26. Accordingly, the Board concludes that there is a preponderance of evidence against the Veteran's claim for an initial compensable rating for cysts of the right kidney. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply; therefore, the claim for a higher initial compensable evaluation must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Extraschedular Rating Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations 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 may be made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R § 3.321(b)(1) (2012). Here, the rating criteria reasonably describe the Veteran's symptoms and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). As discussed above, the schedular criteria for a higher compensable rating have not been shown. The record does not reflect that the Veteran has required any hospitalizations for his cysts of the right kidney. There is also no indication in the record that the Veteran's cystic kidney disease markedly interferes with his employment or daily activities, beyond what is contemplated in the rating schedule. In fact, in the July 2010 VA examination, the examiner stated that the Veteran's cysts of the right kidney did not have any significant effects on his occupation or on his usual daily activities. In addition, in the May 2012 and April 2013 VA examination reports, the examiners indicated that the Veteran's cystic kidney disease did not impact his ability to work. Thus, a referral for an extra-schedular rating is not warranted. ORDER Entitlement to an initial compensable rating for cysts of the right kidney is denied. REMAND Pursuant to the Board's February 2013 remand, the Veteran underwent a VA examination in April 2013 that was pertinent to his service-connected right fifth finger disability. In the examination report, the examiner specifically indicated that imaging studies of the Veteran's hands had been performed and that the results were available. The examiner also reported that there were abnormal findings. However, the examiner failed to provide the abnormal findings. In this regard, the examiner did not note whether the x-rays of the Veteran's hands documented any degenerative or traumatic arthritis, specifically in his right fifth finger. Moreover, the x-ray reports referred to by the examiner were not associated with the examination report. Thus, the VA x-ray reports of the Veteran's hands need to be obtained and considered. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating VA has constructive, if not actual, notice and possession of these records since generated and maintained within VA's healthcare system, even if not at the moment physically present in the claims file). In an Informal Hearing Presentation, dated in June 2013, the Veteran's representative, Veterans of Foreign Wars of the United States (VFW), stated that the Veteran continued to maintain that the RO had not considered the functional loss he experienced due to his service-connected right fifth finger disability. Thus, in light of the foregoing, the Board finds that a new examination is needed prior to a final adjudication of the Veteran's current claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Request copies of the x-rays reports (x-rays of the Veteran's hands) that were referred to in the Veteran's April 2013 VA examination report. Such x-ray reports should be associated with the claims file. 2. After any additional evidence has been obtained and added to the record, the RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA orthopedic examination to determine the current severity of his service-connected right fifth finger disability. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must review all of the evidence of record. All necessary special studies or tests are to be accomplished, to include x-rays if deemed necessary by the examiner. The examiner should identify all right fifth finger symptomatology, including, if appropriate, tenderness, pain, limitation of motion, and/or ankylosis. With respect to ankylosis, the examiner should provide specific findings of whether ankylosis of the right fifth finger is present. The examiner also MUST specifically state whether the Veteran has arthritis in his right fifth finger. In addition to objective test results, the examiner should fully describe the functional impairment caused by the service-connected right fifth finger disability, to include any effect on employment and functioning in daily life. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance. 3. The RO must then review and re-adjudicate the issue that remains on appeal. If the benefit sought is denied, the RO must provide the Veteran and his representative a supplemental statement of the case, and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs