Citation Nr: 1329515 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-22 722 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to initial ratings for diabetic nephropathy with hypertension in excess of 60 percent from April 30, 2004 to April 8, 2007 and in excess of 80 percent from April 9, 2007 to August 1, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from August 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision that, in part, granted service connection for diabetic nephropathy and hypertension, effective April 30, 2004 and assigned initial ratings of 20 percent for nephropathy and 10 percent for hypertension. While the Veteran initiated appeals of all of the claims adjudicated in the August 2005 rating decision and perfected appeals for higher ratings for posttraumatic stress disorder (PTSD) and tinnitus, which were adjudicated in a November 2004 rating decision, he explicitly withdrew his appeal of all pending claims in June 2007. However, at the same time the Veteran raised a new claim for service connection for end stage renal failure as secondary to the service- connected diabetes mellitus. Thereafter, the rating for diabetic nephropathy was combined with hypertension and increased to 60 percent in a September 2007 rating decision, effective April 30, 2004 and then higher "staged" ratings were assigned in an April 2008 rating decision with a disability rating of 80 percent, effective April 9, 2007, and a 100 percent disability rating, effective August 2, 2007. In May 2008, the Veteran expressed his disagreement with the rating and stated he wanted the 100 percent rating to be effective back to April 30, 2004 when service connection was established. Although the Veteran expressed a desire to withdraw his claim for a higher rating for diabetic nephropathy in June 2007, his new claim essentially sought the same thing, namely, a higher rating for the already service-connected kidney disability. Whether the Veteran was unclear as to the scope of his service-connected kidney disability is uncertain; however, when viewed liberally it is clear that from the time service connection was established the Veteran was seeking a higher rating. His attempt to withdraw a claim in the same letter he attempts to raise the same claim demonstrates a desire to continue the appeal. Furthermore, his follow-up letter in September 2007 specifically identified claims he wished to withdraw and does not include diabetic nephropathy. For these reasons, the Board has characterized the issues on the title page to reflect the current appeal for a higher initial rating rather that a claim for an earlier effective date. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). FINDINGS OF FACT 1. From April 30, 2004 to April 8, 2007, the Veteran's nephropathy with hypertension was not manifested by persistent edema and albuminuria with BUN of 40 to 80 mg%; or creatinine 4 to 8 mg %; or, generalized poor health characterized by weakness, lethargy, anorexia, weight loss, or limitation of exertion. 2. From April 9, 2007 to August 1, 2007, the Veteran's nephropathy with hypertension did not require regular dialysis, or preclude 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. CONCLUSION OF LAW The criteria for initial ratings for diabetic nephropathy in excess of 60 percent from April 30, 2004 to April 8, 2007 and in excess of 80 percent from April 9, 2007 to August 1, 2007 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Codes (Codes) 7913-7502. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012), and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). To this end, VA must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). When the claim is for service connection, the notice should address all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, (4) disability rating, and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice also should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The appeal of this claim arose from the August 2005 rating decision granting service connection for diabetic nephropathy and hypertension, and assigning the initial 20 and 10 percent ratings, respectively, that became effective the day the claim, which was April 30, 2004. Once a Notice of Disagreement (NOD) has been filed, for example contesting a "downstream" issue such as 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 to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). He was provided this required SOC in April 2009 citing the applicable statutes and regulations and discussing the reasons and bases for why higher initial ratings for the disability were not assigned. Indeed, he was also provided a supplemental SOC (SSOC) in May 2011. VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). VA has obtained all pertinent/identified records that could be obtained and the Veteran's VA and service treatment records have been secured. The Veteran was also afforded VA examinations, as set forth below, that are deemed adequate and contain sufficient information to rate the disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Legal Criteria and Analysis In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, a disability may have undergone varying and distinct levels of severity throughout the entire time period that the increased-rating claim has been pending. In those instances, it is appropriate to "stage" the rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (employing this practice irrespective of whether the rating being contested in an established or initial rating). Regulations require that, 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected kidney disability, which resulted in end-stage kidney failure, is rated under Codes 7913-7502 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Code 7502, for nephritis, is rated as renal dysfunction. Under the criteria for renal dysfunction, a 60 percent rating is assigned for 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 persistent edema and albuminuria with blood urea nitrogen (BUN) of 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. A 100 percent evaluation contemplates cases 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, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a, renal dysfunction. Since the disability is rated by analogy, the Board notes there are other diagnostic codes related to kidneys that contain criteria for ratings in excess of 60 percent. Diagnostic Code 7507, anterior nephrosclerosis, is rated according to the predominant symptoms as renal dysfunction, hypertension, or heart disease. See 38 C.F.R. § 4.115b. Diagnostic Code 7528, malignant neoplasms of the genitourinary system is rated 100 percent following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, and continues at 100 percent with a mandatory VA examination at the expiration of 6 months. See, Id. Diagnostic Code 7529, benign neoplasms of the genitourinary system, and is rated as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Diagnostic Code 7530 and Codes 7534-7541 are all renal disorders that are rated based on renal dysfunction. Id. The Veteran's kidney disability does not involve cancer or benign neoplasms; therefore, Codes 7528 and 7529 are not applicable. Since the remaining codes are essentially rated based on renal dysfunction, it is most appropriate to rate the disability on this basis. Here, a 100 percent rating was assigned beginning August 2, 2007; however, the Veteran contends that a 100 percent rating should be assigned for the entire period of the appeal, which dates back to April 30, 2004. He asserted the Decision Review Officer (DRO) who conducted an informal hearing in September 2007 informed him that he would assign a 100 percent rating back to April 30, 2004 and the cover letter to the April 2008 rating decision essentially stated the same thing. A review of the September 2007 DRO Informal Conference Report contains a summary of the discussion and agreed upon action but does not state the Veteran would be assigned a 100 percent rating back to April 30, 2004. The subsequent action taken by the DRO in the September 2007 rating decision only increased the rating to 60 percent, effective April 30, 2004. Parenthetically, the rating decision erroneously stated that this increase was a full grant of the benefit sought on appeal and therefore the appeal of the issue was withdrawn. There is nothing in the record that shows the Veteran was only seeking the 60 percent rating rather than the maximum schedular rating of 100 percent, so the matter remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In the cover letter preceding the April 2008 rating decision in which the 80 percent and 100 percent ratings were assigned, it states on the third page that the Veteran was "granted entitlement to special monthly compensation based on diabetic nephropathy with hypertension rated 100 percent disabling and other service connected disabilities of Post Traumatic Stress Disorder, diabetes mellitus type II, diabetic retinopathy, tinnitus, neuropathy of bilateral lower extremities, and erectile dysfunction at 60 percent or more effective April 30, 2004". This portion of the letter appears to be in error and a misstatement of the actual award since the letter also states that diabetic nephropathy with hypertension associated with diabetes mellitus was assigned a 100 percent rating effective August 2, 2007. Notably, the rating decision itself also states the 100 percent for diabetic nephropathy with hypertension was only assigned a 100 percent rating beginning August 2, 2007. Furthermore, the section that explains the special monthly compensation (SMC) states S-1 SMC was awarded "on account of diabetic nephropathy with hypertension rated 100 percent and additional service-connected disabilities of tinnitus, independently ratable at 60 percent or more from 08/02/07". Therefore, to the extent the cover letter contained an error in the effective date of the award, the effective date was correctly stated elsewhere in the letter and in the rating decision itself. Nevertheless, the Veteran contends the 100 percent rating should be assigned throughout the appeal period. Based on a review of the record, the Board finds that no higher than the current 60 percent rating may be assigned for the period from April 30, 2004 to April 8, 2007 and no higher than an 80 percent rating may be assigned for the period from April 9, 2007 to August 1, 2007. The Period from April 30, 2004 to April 8, 2007 In order to assign a rating in excess of 60 percent during this period, the disability must, at a minimum, more closely approximate the criteria for an 80 or 100 percent rating. On January 2005 VA Agent Orange Examination, the Veteran appeared well nourished, well developed, and not in distress. He denied having any cardiac or vascular symptoms. He had a weight loss of 5 pounds from diet and exercise and he denied having any restriction of activities. There was no edema in the extremities. He was employed full-time. On examination, no heart abnormality was detected. On April 2005 QTC VA examination, the Veteran reported he previously had weight loss due to a thyroid condition and that he had more recently been gaining weight. He appeared well developed, well nourished, and not in distress. There was no diabetic involvement of the heart and there was no edema in the extremities. He reported having some loss of stamina and denied having kidney problems. The physician's impression was there was evidence of early nephropathy based on slightly elevated BUN. Laboratory tests from December 2004 to September 2006 showed his BUN levels were 22, 27, 31, and 36. Creatinine levels were 1.3, 1.2, 1.8, and 2.1. See January 2005 VA Agent Orange examination, April 2005 QTC VA examination, and treatment records in December 2004 and June 2007. As demonstrated by these findings, an increase is not warranted because the Veteran did not have persistent edema, BUN was no higher than 36, and creatinine was no higher than 2.1. The Veteran was not shown to be in poor health as he was found to be well developed and nourished, and not in distress. The evidence also indicated there was no weight loss due to his kidney disorder, anorexia, limitation in exertion, or required regular dialysis. Since he maintained full time employment as an investigator, the record indicates he was not precluded from more than sedentary activity. As a preponderance of the evidence is against rating in excess of 60 percent for nephropathy with hypertension during this period, the benefit-of-the-doubt doctrine does not apply and, therefore, a higher rating during this period is denied. The Period from April 9, 2007 to August 1, 2007 During this period, the RO assigned an 80 percent rating; the evidence does not support a higher rating of 100 percent. A May 2007 treatment record shows the Veteran appeared well nourished, well developed, and not in distress. There was also no evidence of edema. Laboratory results showed BUN was 72 and creatinine was 4.0. See an August 2007 treatment record. A June 2007 treatment record reflects laboratory findings from April 2006 to May 2007. BUN was 31, 36, 51, 54, and 72. Creatinine was 1.8, 2.1, 3.3, 3.6, and 4.0. A June 2007 letter and VA consult report from the Chief of the Nephrology Unit summarized the Veteran's medical conditions related to diabetes. The Veteran's hypertension had been present since 2004 and his kidney failure progressed over the past 2 years with creatinine of 1.3 mg/dL in January 2005 to 4.0 mg/dL in May 2007. The more recent finding represented approximately 1/5 of normal kidney function. The Veteran had moderate proteinuria with a urine protein/creatinine ratio of 2. He concluded that the kidney failure was primarily due to the nephropathy and partially due to hypertension, which had been difficult to control lately. The Veteran's hypertension was poorly controlled, which was likely due to the progressive diabetic nephropathy. He did not have any edema in his extremities. He noted the Veteran worked as an investigator at a county Internal Affairs Unit and that the Veteran was not yet at the point where dialysis was required but that once it was the Veteran would be considered fully disabled. An August 2007 treatment record includes laboratory results from July 2007, which shows the Veteran's BUN was 65 and creatinine was 4.4. The Veteran's appetite was poor and had been so for the past month. The physician's impression was the Veteran was very close to stage 5 chronic kidney disease but with minimal symptoms, if any. As shown, during this period, the Veteran was not on dialysis and since he was still working full-time, he did not appear to be precluded from more than sedentary activity. Furthermore, he did not have persistent edema, BUN was below 80 mg, creatinine was below 8 mg. Although the Veteran's physician indicated in June 2007 that there was markedly decreased kidney function, he was also found to have little, if any, symptoms associated with his kidney disability and, again, he was still working full-time and did not appear to be precluded from more than sedentary activity. As a preponderance of the evidence is against rating in excess of 80 percent for nephropathy with hypertension during this period, the benefit-of-the-doubt doctrine does not apply and, therefore, a higher rating during this period is denied. A claim for entitlement to a total disability rating based upon individual unemployability has also been raised. See Claim from the Veteran dated June 26, 2007; Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. § 4.16(a). However, since the Veteran was employed on a full-time basis during the time period in question (from April 30, 2004, to August 1, 2007), there is no entitlement under the law to this benefit during this time. See Sabonis v. Brown, 6 Vet App 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000). In fact, the Veteran reported that he was still employed full time on his VA Form 21-8940 dated June 26, 2007, and had been since October 2000. 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, as described above, are not present. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected kidney disability. 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 continued to work full time as an investigator. 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. ORDER Ratings in excess of 60 percent from April 30, 2004 to April 8, 2007 and 80 percent from April 9, 2007 to August 1, 2007 for diabetic nephropathy with hypertension are denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs