Citation Nr: 1339532 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 08-06 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an initial disability evaluation in excess of 30 percent for service-connected renal insufficiency prior to February 1, 2012, and in excess of 60 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which granted service connection for renal inefficiency as secondary to the Veteran's service-connected diabetes mellitus, type II. The RO assigned a disability rating of 30 percent effective October 5, 2005. In December 2011, the Board remanded the claim to afford the Veteran VA examinations and obtain VA treatment records. The Veteran was afforded adequate examinations in February 2012 related to his renal insufficiency/kidney disease and his hypertension. VA treatment records from 2003 through 2005 were obtained as requested by the Veteran's Representative. In addition, the most updated VA treatment records through July 2012 were obtained. These records were associated with the claims file prior to the issuance of an August 2012 Statement of the Case (SSOC) by the RO. The Board acknowledges the Veteran's Representative's concern that treatment records concerning the Veteran's June 2010 coronary bypass surgery are not in the record. This will be discussed below. Based on the evidence that is of record, the Board finds that it is sufficient to decide the claim without prejudice to the Veteran and that the remand directives have been completed. Therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In an August 2012 rating decision, the RO increased the evaluation for the Veteran's renal insufficiency from 30 percent to 60 percent, effective February 1, 2012, the date of the Veteran's most recent VA examinations. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. The issues of entitlement to service connection for hypertension, GERD, sleep apnea and erectile dysfunction have been raised by the record, but have not been fully adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to April 14, 2010, the record does not reflect albuminuria with edema, a definite decrease in kidney function or compensable hypertension. 2. On April 14, 2010, the Veteran was diagnosed with chronic kidney disease indicating a definite decrease in kidney function. 3. Throughout the appeal period, BUN (blood urea nitrogen) was less than 40mg%; creatinine was less than 4mg%; hypertension was noncompensable; persistent edema and albuminuria were not shown; generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion were not shown; the need for regular dialysis was not shown; and the Veteran was not precluded from more than sedentary activity. CONCLUSIONS OF LAW 1. Prior to April 14, 2010, the criteria for a disability rating in excess of 30 percent for renal insufficiency have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.115a , 4.115b, Diagnostic Code 7541 (2013). 2. On and after April 14, 2010, the criteria for a disability rating of 60 percent, but no higher, for renal insufficiency have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7541 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was initially provided with a pre-adjudicatory VCAA notice letter in April 2007 regarding his claim for service connection for diabetes mellitus, type II. The letter informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. The letter also informed the Veteran of how to substantiate disability ratings generally and how effective dates are determined. Thereafter, following a May 2007 rating decision granting service connection for diabetes mellitus, the Veteran's Representative requested consideration of service connection for renal insufficiency as secondary to his diabetes mellitus. Although a separate VCAA notice letter was not issued, service connection for renal insufficiency was granted in June 2007 and thus, the Veteran was not prejudiced by any lack of notice. With regard to an initial rating claim, such a claim is generally considered to be a "downstream" issue from the original grant of benefits. VA's General Counsel issued an advisory opinion holding that separate notice of VA's duty to assist the Veteran and of his concomitant responsibilities in the development of his claim involving such downstream issues is not required when the Veteran was provided adequate VCAA notice following receipt of the original claim. See VAOPGCPREC 8-2003. Further, 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 elements. See Goodwin v. Peake, 22 Vet. App. 128 (2008), citing Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). In this case, the Veteran has not alleged that he has suffered any prejudice as to the lack of pre-adjudicatory notice specific to the initial rating claims. Notably, a notice of disagreement as to an initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2013). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This is accomplished in a statement of the case (hereinafter: SOC). Here a November 2007 SOC provided the Veteran with the relevant rating criteria as listed at various diagnostic codes. The claimant was informed of the evidence needed to achieve a higher schedular rating. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him 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. § 3.1590 (2013). The record reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matter on appeal, including the Veteran's service treatment records, private treatment records from the Dickinson Clinic and VA treatment records from the Fargo, Bismarck and Minneapolis VA Medical Centers. The Veteran's Representative in a November 2013 statement indicated concern that records regarding the Veteran's June 2010 coronary bypass surgery are not of record. The Board notes that other medical records consider and acknowledge the treatment received in June 2010 and that those records will not affect the rating of the Veteran's renal insufficiency which is the specific issue over which the Board has jurisdiction. The evidence of record allows the Board to make a thorough analysis of the manifestations of the Veteran's renal insufficiency and the Board finds the Veteran will not be prejudiced in this appeal by the absence of records concerning his heart surgery. The February 2012 VA examinations regarding the Veteran's kidney conditions (nephrology and kidney disease) and his hypertension were based on a physical examination of the Veteran and a review of the claims file. The necessary tests and measurements were taken. The reports and Disability Benefit Questionnaires provide the medical information necessary to address the issue on appeal. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Entitlement to Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic 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. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected renal insufficiency has been rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7541. Diagnostic Code 7541 pertains to renal involvement in diabetes mellitus or other systemic disease processes and directs that the disability is to be rated as renal dysfunction. See 38 C.F.R. § 4.115a. Pursuant to 38 C.F.R. § 4.115a , the diagnostic criteria for renal dysfunction provide that a 30 percent rating requires 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 rating requires 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 requires 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. A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. The Veteran has hypertension that is not service-connected. A 10 percent rating for hypertension pursuant to diagnostic code 7101 requires 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. A 40 percent rating requires diastolic pressure predominantly 120 or more. Notably, except in cases where there is an absence of a kidney or there is chronic renal disease requiring regular dialysis, separate ratings are not to be assigned for any coexisting hypertension or heart disease. 38 C.F.R. § 4.115 (2013). A review of the Veteran's medical records reflects that he has not been found to have albuminuria. Edema was first noted in May 2011. The Veteran's highest BUN was 31 in May, 2012. Prior to that, with the exception of the measurement of 30 at the February 2012 VA examination, the Veteran's BUN was consistently below 30. His creatinine was never higher than 2.1mg%. With regard to the Veteran's hypertension, the record indicates that it requires continuous medication for control. The totality of the evidence of record, however, demonstrates that the Veteran's diastolic blood pressure has never been 100 or more, nor has his systolic pressure been 160 or more. At its worst, in August 2007, August 2009 and March 2010, the readings were 146/83, 142/83 and 142/87, respectively. As to the Veteran's kidneys, the record reveals a normal kidney test in July 2008. In April 2009, the Veteran's BUN and creatinine levels were noted to be normal. Renal function was found to be "within normal limits" in September 2009 and the kidneys were reportedly normal in November 2009. In April 2010, the Veteran was notified that his kidney test was "a bit elevated" and it was suggested he see a specialist. On April 14, 2010, the Veteran was assessed with chronic kidney disease, stage II and the examiner detected possible early diabetic nephropathy. His creatinine was 1.7mg%. By May 2010, the Veteran's chronic kidney disease was classified as stage III, although mild. His creatinine was 1.8mg%. The record reflects that the Veteran's kidney function continued to deteriorate and in September 2011 his kidney disease was classified as moderate. Also notable is his creatinine was 2.1mg%, the highest recorded since 2005. No lay or medical evidence of lethargy, weakness, anorexia, weight loss or limitation of exertion exists in the record. In addition, the Veteran does not require regular dialysis. Applying the criteria of diagnostic code 7541 to the facts of this case, the Board finds no basis to assign a disability rating higher than 30 percent for the Veteran's renal insufficiency prior to April 14, 2010 when the record demonstrates definite decrease in kidney function as reflected by the assessment of chronic kidney disease. Prior to that date, the Veteran had no edema and noncompensable hypertension. His BUN was significantly under 40 and his creatinine was significantly less than 4mg%. As to the period after April 14, 2010, the Board finds a 60 percent rating, but no higher, is appropriate. The record from April 14, 2010 shows a definite decrease in kidney function, but does not show any of the elements required for either an 80 percent or 100 percent rating under diagnostic code 7541. Because the preponderance of the evidence is against the claim for a disability rating in excess of 30 percent prior to April 14, 2010 or in excess of 60 percent thereafter, the benefit of-the-doubt doctrine does not apply and higher ratings than those granted here are not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). III. Extraschedular Considerations In reaching the above decisions, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's renal insufficiency is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating for the disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his deteriorating kidney function. As discussed above, there are higher ratings available under the Rating Schedule, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected renal insufficiency under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that renal insufficiency renders the Veteran unable to acquire and maintain substantially gainful employment. During the course of the appeal, the Veteran has been self-employed as an over the road truck driver. The VA examiner in 2012 indicated that the Veteran's disability did not impact his ability to work. The Veteran has not expressed disagreement with that assessment. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to a disability rating in excess of 30 percent for service-connected renal insufficiency prior to April 14, 2010 is denied. Entitlement to a disability rating of 60 percent (but no higher) for service-connected renal insufficiency is granted from April 14, 2010, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs