Citation Nr: 1331203	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  11-13 019	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an increased disability rating in excess of 20 percent for immunogloubin A (IgA) nephropathy with hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran, and S. F., the Veteran's wife


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had active military service from July 1980 to July 2000. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

A hearing before the undersigned Veterans Law Judge was held at the RO in September 2011.  A transcript of the hearing has been prepared and associated with the claims file.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran's service-connected IgA nephropathy with hypertension has manifested with a definite decrease in kidney function.


CONCLUSION OF LAW

The criteria for a 60 percent, but no higher, evaluation for service-connected IgA nephropathy with hypertension have been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1-4.7; 4.104, Diagnostic Code (DC) 7101; 4.115, 4.115a, 4.115b, Diagnostic Code 7101-7507 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in March 2009, prior to the initial RO decision that is the subject of this appeal.  The letter informed him of what evidence was required to substantiate the claim, his and VA's respective duties for obtaining evidence, and the notice requirements pursuant to Dingess.

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained all post-service treatment records identified by the Veteran.  Next, the Veteran was afforded VA examination in March 2009.  The Board finds the VA examination to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria.  38 C.F.R. § 3.159(c)(4).

The Veteran also, as mentioned, has testified at a hearing before the Board in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge chairing a hearing fulfill two duties to comply with this VA regulation.  These two duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  

Here, during the hearing, the presiding Veterans Law Judge elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not then currently of record that might tend to substantiate the claim.  Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of that hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated his actual knowledge of the elements necessary to substantiate his claim for benefits.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim).  As such, the Board finds that, consistent with Bryant, the presiding Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicating this claim on the current record.

Accordingly, the Board finds that VA's duty to assist has been met.  Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. 

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Merits of the Claim

The Veteran was originally service connected for IgA nephropathy with hypertension in an October 2000 rating decision with a 20 percent disability rating, effective August 1, 2000.  At that time, this disability was evaluated under Diagnostic Code 7507-7101 as 20 percent disabling, effective August 1, 2000.  See 38 C.F.R. § 4.104.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In a December 2004 rating decision, this disability was continued at a 20 percent disability rating. 

In an August 2009 rating decision, the 20 percent evaluation was continued for IgA nephropathy with hypertension.  The Veteran has perfected his appeal with regard to this issue.

When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of his January 2009 claim.

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155.

Under Diagnostic Code 7507, arteriolar nephrosclerosis is rated according to the predominant symptoms as renal dysfunction, hypertension, or heart disease.  38 C.F.R. § 4.115b.  As explained below, the Veteran's symptoms are predominantly hypertension and renal dysfunction.

Under Diagnostic Code 7101, hypertension with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent disabling.  38 C.F.R. § 4.104.  Hypertension with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling.  38 C.F.R. § 4.104, Diagnostic Code 7101.  Hypertension with diastolic pressure predominantly 120 or more is rated 40 percent disabling.  Id.  Hypertension with diastolic pressure predominantly 130 or more is rated 60 percent disabling.  Id. 

Separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities.  38 C.F.R. § 4.115.

Effective October 6, 2006, VA revised the regulations governing the evaluation of specified cardiovascular disorders-those rated under Diagnostic Codes 7000 through 7007, 7011, and 7015 through 7020.  See 38 C.F.R. 4.100.  The revised regulation adds a new "Note (3)" to 38 C.F.R. § 4.104, DC 7101 for hypertensive vascular disease, stating that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease; however, the specific criteria for rating hypertension (set forth in DC 7101, as above) has remained unchanged.

Furthermore, pursuant to 38 C.F.R. § 4.115a, the diagnostic criteria for renal dysfunction provide that a 30 percent 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 DC 7101.  A 60 percent disability rating is warranted for renal dysfunction characterized by constant albuminuria with some edema; or, where there is a definite decrease in kidney function; or, where hypertension is at least 40 percent disabling under DC 7101.  An 80 percent disability rating is warranted where there is 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 highest disability rating of 100 percent is warranted where the renal dysfunction requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, where BUN is more than 80mg%; or, creatinine more than 8mg%; or, where there is markedly decreased function of kidney or other organ systems, especially cardiovascular.  38 C.F.R. § 4.115a

Here, the Board finds that the evidence supports an evaluation of 60 percent under the criteria set forth in 38 C.F.R. § 4.115a.  In reaching this decision, the Board notes that there is objective medical evidence that reflects a definite decrease in kidney function, which by itself is sufficient to warrant a 60 percent rating for the service-connected IgA nephropathy with hypertension. 

According to the evidence of record, the Veteran testified he is currently on medication for his hypertension and to improve kidney function.  He stated he submitted a letter from his VA nephrologist, Dr. L. F., who stated his condition was predominately a decrease in kidney function associated with renal dysfunction rather than hypertension.  He stated he experiences blood in his urine, back pains, fatigue, and mild weight loss.  The Veteran also stated he was told by Dr. L. F. that he will need to undergo dialysis in the future.  He testified he did not have any swelling of the legs or ankles.  The Veteran's wife, S. F., also testified that the Veteran contracts upper respiratory infections which, they were told by Dr. L. F., were related to his kidney function.

The Veteran was afforded a VA examination in March 2009 where it was noted he continued use of medication for his blood pressure.  He stated his blood pressure has been ranging from 115/78 to 125/83.  He denied a history of coronary artery disease or myocardial infarction.  He denied any strokes or mini-strokes.  The Veteran reported very mild swelling of the legs where there was an indentation at the sock line but with no continuous or severe swelling of the hands or feet.  He reported nausea, which began a couple of days prior to the examination.  The Veteran denied any excessive fatigue and has not been diagnosed with renal failure.  He was not on dialysis but did discuss possible future dialysis.  He reported protein and blood in his urine but with no kidney infections, genitourinary tract surgery, or kidney surgery.  

The examiner discussed the evidence of record which indicated that in January 2009 the Veteran was diagnosed with IgA nephropathy but had been doing well.  He had some gross hematuria in the early winter but was resolved.  The Veteran's blood pressure was 138/70.  The VA nephrologist noted the Veteran's creatinine was stable but was a little concerned that his albumin had dropped.  The nephrologist felt that it could mean the Veteran's proteinuria had increased which could indicate worsening kidney damage even if the creatinine had not changed.  Good control of the hypertension was stressed as it could exacerbate kidney disease, particularly with proteinuria.  An addendum to his note, also dated January 2009, indicated that the protein/creatinine ratio of 1.6 fell higher than desired.  A physical examination revealed his blood pressure readings were 130/74, 136/72, and 122/70.  

The Veteran submitted a letter from Dr. L. F., dated April 2010, who stated, "it is clear from my review of the medical records that [the Veteran] has significant kidney disease with a decrease in kidney function and in fact has had his decline since at least 2004."  She continued, "the predominant symptom of this disease is not hypertension, it is kidney disease.  The hypertension is a result, not cause of his kidney disease and is readily controlled."  Dr. L. F. explained:

[The Veteran] has had a definite decrease in kidney function since 2004, when his creatinine increased to 1.4-1.5 mg/dl range.  His current creatinine level of 1.7 is above the upper limit of normal (drawn [January 4, 2011]).  His estimated GFR is 45 ml/min/1.73mē, which corresponds to stage 3 [chronic kidney disease] which is moderate kidney disease using the current classification.  This represents a greater than 50 [percent] loss of kidney function, as the normal GRF is approximately 100 ml/min.  That it has been stable in this range foes not obviate the fact that he has a definite decrease in kidney function. 

Dr. L. F. concluded that the requirement of "constant albuminuria with some edema; or, where there is a definite decrease in kidney function; or, where hypertension is at least 40 percent disabling under DC 7101" was met and, thus, supported a 60 percent disability under this criteria.

Based on the evidence, and resolving all doubt in favor of the Veteran, there are sufficient laboratory findings of decreased kidney function to warrant an increase from 20 to 60 percent for renal dysfunction under 38 C.F.R. § 4.115a.  As indicated, separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities.  38 C.F.R. § 4.115.  

The Board finds that the criteria for an 80 or 100 percent rating are not met, however.  There are no indications of marked/severe edema and microalbuminuria by VA examiners.  No laboratory findings in VA and private medical records show BUN levels of 40 to 80 mg percent or creatinine of 4 to 8 mg percent.  The Veteran's private and VA treatment records from July 2008 to September 2011 show BUN levels that range from 14 to 20 mg percent and creatinine levels that range from 1.4 to 1.8 mg percent.  These findings are significantly less than those required for the higher 80 percent rating under § 4.115a, as none approach a BUN level of at least 40 mg percent or creatinine level of at least 4 mg percent.  Further, the objective evidence did not show that he experienced generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion due to renal dysfunction.  There is also no indication of regular dialysis, a preclusion of more than sedentary activity, or marked decreased organ function.

The Board acknowledges the Veteran's competent testimony that he experiences blood in his urine, back pains, fatigue, and mild weight loss.  However, he is not competent as a lay person to provide an opinion concerning medical causation.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  While the Board recognizes that he is certainly competent to describe his symptoms such as fatigue and weight loss, any contentions by the Veteran that these symptoms are related to his current renal disability is of minimal probative value.  The Veteran has not been shown to possess the competence to identify a specific level of disability according to the appropriate diagnostic code.  Significantly, Dr. L. F. determined that the Veteran meets the criteria for a 60 percent disability rating, no higher. 

In short, there is no basis to assign a disability rating higher than 60 percent for the Veteran's IgA nephropathy with hypertension.  The Board finds the medical records and VA medical examination reports of record to be highly probative as to the severity of the Veteran's service-connected disability.  The Veteran's assertions that he is entitled to higher schedular ratings based on his symptoms, although credible and probative, are outweighed by the VA medical examination reports and other clinical findings. 

Accordingly, for all of the foregoing reasons, the Board finds that a 60 percent evaluation, and no higher, is warranted.  

The Board has also considered whether referral for an extraschedular evaluation is warranted.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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."  Id.  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111  (2008).

In this case, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings 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.  Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted.

Lastly, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable.  The Veteran testified at the Board hearing that he was currently employed as a diesel mechanic.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378  (Fed. Cir. 2001). 


ORDER

A 60 percent rating, but no higher, for service-connected IgA nephropathy with hypertension is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs