Citation Nr: 1342589 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-18 287A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating for chronic kidney disease associated with type II diabetes mellitus in excess of 60 percent. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1966 to December 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the RO in Roanoke, Virginia. While the Veteran's notice of disagreement specifically mentioned a December 2009 rating decision, which denied an increased initial rating for chronic kidney disease as being on appeal, the January 2010 notice of disagreement was received within one year from the May 2009 rating decision which granted service connection and assigned the initial rating of 60 percent. Accordingly, the Board has characterized this as an appeal of the initial rating assigned in the May 2009 decision. The issue on appeal was previously remanded by the Board in August 2013 for further evidentiary development of requesting outstanding post-service VA treatment records and to schedule a VA examination for the Veteran's kidney disease. This was accomplished, and the claim was readjudicated in an October 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT The Veteran's kidney disease has not manifested persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg percent; or creatinine 4 to 8mg percent; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSION OF LAW The criteria for an initial rating in excess of 60 percent or chronic kidney disease associated with type II diabetes mellitus have not been met for any period. 38 U.S.C.A. § 1155 (West 2002 & Supp.); 38 C.F.R. § 4.115(a) and (b), Diagnostic Code 7541 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Because this is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for chronic kidney disease, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, and statements from the Veteran and the authorized representative of record. The Veteran was also afforded a VA examination in November 2009. Pursuant to the Board's August 2013 remand, the RO scheduled the Veteran for another VA examination to assist in determining the severity of the Veteran's kidney disease; however, the Veteran was unable to attend the VA examination due to illness. As such, the Board will adjudicate the claim based on the available evidence of record. For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability rating assigned to the service-connected right knee disability by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. As the Board will discuss in more detail below, the Board finds that symptoms and impairment related to the kidney disease have not changed in severity over the course of the appeal to warrant a staged rating. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Initial Rating for Kidney Disease During a November 2009 VA examination, the Veteran reported that symptoms of kidney disease included urination about 10 times at intervals of one hour during the day, and four times at intervals of one hour at night. He also reported weakness, weight loss, limitation of exertion, and renal colic. The Veteran's service-connected chronic kidney disease has been rated as 60 percent disabling under the provisions of Diagnostic Code 7541. 38 C.F.R. § 4.115b. Diagnostic Code 7541 pertains to renal involvement in diabetes mellitus, sickle cell anemia, systemic lupus erythematosus, vasculitis, or other systemic disease processes. Under that diagnostic code, the disability is rated as renal dysfunction. 38 C.F.R. § 4.115b. In cases of renal dysfunction, the next higher 80 percent evaluation is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg percent; or creatinine 4 to 8mg percent; 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 80mg percent; or creatinine more than 8mg percent; or markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's kidney disease is not manifested by persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg percent; or creatinine 4 to 8mg percent; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Veteran was afforded a VA examination in November 2009. As noted above, the Veteran reported that symptoms of kidney disease included urination about 10 times at intervals of one our during the day, and four times at intervals of one hour at night. He also reported weakness, weight loss, limitation of exertion, and renal colic. The Veteran denied fatigue, loss of appetite, weight gain, anorexia, recurrent urinary tract infections, and bladder stones with pain. The examiner noted that the Veteran did not require any procedures for his genitourinary problem and was not on dialysis regularly. The Veteran reported that he did not experience any overall functional impairment from the kidney disease condition. Upon evaluation, the VA examiner noted that Complete Blood Count (CBC) was within normal limits and only showed some insignificant abnormalities. The urinalysis showed a presence of red blood cells, but was absent of protein, sugar, hyaline casts and granular casts. Pursuant to the Board's August 2013 remand, the RO was asked to obtain updated VA treatment records and to schedule the Veteran for another VA examination to assist in determining the current severity of his kidney disease. The RO complied with the Board's remand directives and scheduled the Veteran for a VA examination; however, VA was notified that the Veteran was unable to attend the scheduled examination due to illness and hospitalization. See September 2009 email correspondence from Veteran's next of kin. The Board finds that this notice is considered good cause for non-attendance. Upon review of the evidence of record, the Veteran has not requested that VA reschedule the examination; as such, the Board has reviewed the available evidence of record, which includes newly obtained VA treatment notes. The available evidence of record demonstrates that the Veteran's acute renal failure was considered to be in stable condition. See VA treatment note dated August 2013. Further, a September 2013 VA treatment note reveals that the Veteran was identified with a positive MRSA test (methicillin-resistant Staphylococcus aureus), which resulted in the Veteran's long-term inpatient treatment care status. The Board finds that although VA treatment records reveal that the Veteran has had weakness, weight loss, limitation of exertion, and anemia, these symptoms have not been identified as being related to the service-connected renal impairment, and were instead noted as symptoms presented during the period of inpatient care for MRSA. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence of record demonstrates that the Veteran's kidney disease is not manifested by persistent edema and albuminuria with BUN of 40 to 80mg percent; or creatinine 4 to 8mg percent; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. As such, a rating in excess of 60 percent is not warranted for the Veteran's kidney disease. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's kidney disease. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (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. 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). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's kidney disease is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Code 7541 considers symptoms pertaining to renal involvement in diabetes mellitus, which is the Veteran's current disability. See July 2009 rating decision (Veteran granted service connection for chronic kidney disease associated with type II diabetes mellitus). The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. Although the Veteran has symptoms of weakness, weight loss, limitation of exertion, and anemia, these symptoms have not been identified as being related to the service-connected renal impairment, and were instead noted as symptoms presented during the period of inpatient care for MRSA. In the absence of exceptional factors associated with the Veteran's kidney disease, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating for chronic kidney disease associated with type II diabetes mellitus in excess of 60 percent is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs