Citation Nr: 1343496 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-46 566A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Propriety of the total rating termination for renal failure and postoperative residuals of a kidney transplant undertaken in January 2008. 2. Entitlement to service connection for disability manifested by pain of the right shoulder and arthritis, to include as secondary to service-connected renal failure and postoperative residuals of a kidney transplant. 3. Entitlement to service connection for disability manifested by pain of the right knee and arthritis, to include as secondary to service-connected renal failure and postoperative residuals of a kidney transplant. 4. Entitlement to service connection for disability manifested by pain of the right hip and chronic flexor strain, to include as secondary to service-connected renal failure and postoperative residuals of a kidney transplant. 5. Entitlement to service connection for disability manifested by pain of the right ankle, arthritis, and osteoporosis, to include as secondary to service-connected renal failure and postoperative residuals of a kidney transplant. 6. Entitlement to service connection for disability manifested by pain of the left arm, to include as due to arteriovenous (AV) fistulae from treatment for renal failure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision entered in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. It was most recently before the Board in February 2013, when it was remanded to the RO through the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. Following the AMC's attempted completion of the actions sought, the case was returned to the Board for further review. The issue of the Veteran's entitlement to service connection for a disability manifested by disability manifested by pain of the right ankle, arthritis, and osteoporosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDINGS OF FACT 1. Action of the RO in January 2008 for the reduction in the total schedular evaluation assigned for service-connected renal failure and postoperative residuals of a kidney transplant was effectuated without regard to the requirements set forth in 38 C.F.R. §§ 3.343 or 3.344. 2. Disability of the right shoulder, right knee, right hip, and left forearm as due to AV fistulae is reasonably attributable to the Veteran's service-connected renal disease and its treatment. CONCLUSIONS OF LAW 1. The RO action of January 2008, terminating the total rating assigned for renal failure and residuals of a kidney transplant, is void ab initio and restoration of the 100 percent schedular evaluation therefor is warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.343, 3.344, 4.115b, Diagnostic Code (DC) 7531 (2013). 2. Right shoulder, knee, and hip disorders, as well as a left forearm disorder due to recurrent AV fistulae, are proximately due to or the result of service-connected renal failure and residuals of kidney transplants. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), became law in November 2000 and it sets out the VA's duties to notify and assist claimants seeking VA benefits. However, as the disposition herein reached is favorable to the Veteran, the need to discuss the VA's efforts to comply with the VCAA and its implementing regulations is obviated. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Propriety of the Total Rating Termination The record reflects that service connection for renal failure with dialysis was established by RO action in November 1992, at which time a 100 percent rating was assigned therefor, effective from July 1992, under DC 7530. Permanency of the total disability rating was subsequently determined by a rating decision of November 1994. A kidney transplant followed in September 1995 and the RO by its rating decision of November 1996 proposed to reduce the 100 percent rating to 30 percent, and following an RO hearing, the reduction action was abandoned and the 100 percent rating was confirmed and continued. Rejection of the kidney occurred in or about 2000, with a return to dialysis being required. A second kidney transplant occurred in 2004. No further change to the total schedular evaluation was thereafter undertaken until the RO by its rating decision of December 2006 proposed to terminate the 100 percent rating for renal failure and postoperative residuals of a kidney transplant, with assignment of a 30 percent rating therefor. The Veteran timely challenged the proposed action and this was followed by the conduct of an RO hearing in August 2007. By its rating decision of January 2008, the RO effectuated the total rating termination and assigned a 30 percent rating for the disability at issue as of May 2008. Under 38 C.F.R. § 4.115b, DC 7531, a kidney transplant is to be evaluated as 100 percent disabling following transplant surgery, and thereafter rated on the basis of renal dysfunction under 38 C.F.R. § 4.115a with a minimum rating of 30 percent. The note following this DC indicates that the rating of 100 percent shall be assigned as of the hospital admission for transplant surgery and shall continue with a mandatory VA examination one year following hospital discharge. In evaluating renal dysfunction, a 30 percent rating is warranted for 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 rating is warranted for constant albuminuria with some edema; or definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for 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 is warranted when renal dysfunction requires regular dialysis, or precludes 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. 38 C.F.R. § 4.115a (2013). DC 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating is warranted with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is warranted with diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted with diastolic pressure predominantly 120 or more. A 60 percent rating is warranted with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101 (2013). Important for this decision is that any change in evaluation shall be subject to the provisions of 38 C.F.R. § 3.105(e), see Note following DC 7531, which provide specified notice and due process requirements where reduction in the evaluation of a service-connected disability would result in a reduction of current compensation payments. The Board acknowledges the decision in Rossiello v. Principi, 3 Vet. App. 430, 433 (1992), which held that, under a separate DC, then in effect and since revised, a rating reduction claim was not at issue as the DC in question mandated an automatic reduction from the 100 percent level by operation of law. Since that decision, VA has revised the DC to its current language, mirroring DC 7528, to require application of the due process provisions of 38 C.F.R. § 3.105 prior to any rating reduction. In making this revision, VA stated that "the rule requires only an examination, not a reduction," six months following the cessation of treatment. Id. Also important for this decision are the provisions of 38 C.F.R. § 3.343(a) which provide that a total disability rating, as here, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, that is, while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months). Additional requirements for a reduction of a rating in effect for five or more years are set forth in 38 C.F.R. § 3.344, which are not exclusive to total rating terminations. Where VA fails to observe applicable law and regulation in reducing a veteran's rating, such a rating is void ab initio and must be set aside as not in accordance with the law. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Notwithstanding the fact that the reduction effectuated in this matter was undertaken in compliance with 38 C.F.R. § 3.105(e), it is nevertheless evident that such action was effectuated without specific consideration or reference to 38 C.F.R. § 3.343, or 3.344, nor was the Veteran furnished notice of those regulations or their impact in any VCAA notice, statement of the case, supplemental statement of the case, or any other subsequent document provided to him by the RO. In sum, the RO has not developed or adjudicated this matter as a case involving a total rating termination governed by 38 C.F.R. §§ 3.343, 3.344, the effect of which is to void ab initio the RO's reduction action of January 2008 and to compel the Board to set it aside as not in accordance with law. Dofflemeyer v. Lewinski, 2 Vet. App. 277, 280-82 (1992) (citing Browder v. Lewinski, 1 Vet. App. 204, 205 (1991)); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). As there is no indication that the RO considered the referenced regulatory provisions in terminating the total rating, and as there was no finding that material improvement had been shown or, if it was established, that it was attained under the ordinary conditions of life, the total schedular rating must be restored for the period at issue. The RO's failure to demonstrate that material improvement attained under the ordinary conditions of life with respect to the Veteran's disability had been shown cannot be cured by subsequent examination or action by VA. Rather, the Board must look only to the evidence of record at the time of the reduction, and determine whether that action was appropriate. This decision does not suggest that the current evidence of record supports the current 100 percent evaluation, simply that the reduction of the 100 percent rating was not effected in accord with dispositive law and regulation. Any subsequent action taken to reduce the rating in question must be in accord with the facts then presented and the governing legal criteria then in effect. Service Connection: Right Shoulder, Knee and Hip & Left Arm Through written statements and oral testimony of the Veteran, bolstered at least in part by the written testimony of his wife, he alleges that he sustained injuries to the affected joints in service which resulted in chronic disablement and, in the alternative, argues that those disorders are due to or aggravated by his service-connected kidney disability and treatment therefor. VA examination in November 2007 disclosed findings yielding pertinent diagnoses of degenerative arthritis of the right acromioclavicular joint and right knee, right hip flexor strain, osteopenia (now service-connected), and residuals of AV fistulae of the left upper extremity. The arthritic involvement of the right shoulder and knee were attributed to the aging process and it was the VA examiner's opinion that the left arm fistulae were at least contributing to the Veteran's complaints of arm pain at the site of the dialysis needle entry occurring every three to four months. It was also the examiner's opinion that it was at least as likely as not that all of the diagnosed entities were unrelated to use of steroids and anti-rejection medications and, due to the conflicting nature of that opinion, further examination and opinion was requested by the Board through its recent remand. An additional VA examination was conducted in March 2013 which was performed by the same examiner who had evaluated the Veteran in 2007. Pertinent diagnoses included a muscle strain of the right hip, which the examiner found difficult to explain as it was not suggestive of intrinsic hip pathology. The likely pain generator was the iliopsoas, although there was little in terms of physical findings or history to establish an exact etiology. Other recorded diagnoses were degenerative arthritis of the right knee and shoulder, and as to both of the foregoing, and the right hip, the VA examiner found that it was less likely as not that any was directly or proximately caused or aggravated by active duty service, as all symptoms first began after service, or by any service-connected disability. No opinion was voiced as to any possible correlation with medications required by kidney transplantation and it was indicated that the Veteran's statements as to his joint or muscle pain in service following injury were not supported by the medical record or orthopedic literature as to the causality of joint pain. Regarding the residuals of a AV fistulae of the left arm, the VA examiner indicated that while left forearm pain from prior renal dialysis treatment had been present, such had resolved and the Veteran no longer had forearm pain or any forearm disorder. Much evidence to the contrary is also of record. A private attending physician opined in February 2008 that the Veteran's increased joint pain was most likely secondary to hyperparathyroidism and longstanding steroid use related to his renal disease. Further medical opinion was obtained from an attending rheumatologist in August 2008 that the presence of inflammatory arthritis could likely be related to the Veteran's chronic renal disease and medications administered to him to avoid rejection of his transplanted kidney. In March 2009 medical opinion was set forth that Cellcept and Prednisone, both of which were among medications taken by the Veteran, carried a risk of an impaired immune response. And, in response to the Board's recent remand, a medical opinion was obtained in March 2013 from a VA physician other than the March 2013 VA examiner whose review of the record led to entry of the opinion that it was likelier than not that the Veteran's kidney disease and treatments for it resulted in increased bone and joint pain, increase in osteoporosis with an associated increased risk of bone pain and fractures, and increased muscle weakness that was otherwise commonly known as steroid myopathy. The rationale for that opinion was that patients with renal failure were at risk for developing hyperparathyroidism leading to pain and demineralization of the bones, that use of Tacrolimus, as had been made by the Veteran, not uncommonly caused arthralgias, and that his use of prednisone was a cause of muscle weakness, myopathy, osteoporosis with increased bone pain, and weight gain/obesity. While there is evidence supporting and contraindicating the nature and etiology of the claimed disorders of the right shoulder, knee, hip, and left forearm, the Board does not herein reach the question of direct service incurrence, inasmuch as the record on balance reasonably supports the claims for service connection for disability of the right shoulder, right knee, right hip, and left forearm, as secondary to service-connected renal disease and residuals of kidney transplants, with treatment therefor. That treatment has included use of medications, including steroids and others administered to reduce the change of organ rejection by the body. The opinions offered by the VA examiner leave open that possibility as least to some degree and various attending private and VA physicians alike have opined that arthritic involvement, as well as joint and bone pain, were likely the result of medications prescribed for treatment of the Veteran's service-connected kidney disease. With resolution of reasonable doubt in the Veteran's favor, service connection for disabilities of the right shoulder, right knee, right hip, and left forearm due to AV fistulae, inclusive of arthritic involvement and arthralgias, is granted. ORDER Inasmuch as the total rating termination effectuated in January 2008 was void ab initio, restoration of the total schedular evaluation for renal failure and residuals of kidney transplantation is granted. Service connection for right shoulder, right knee, right hip, and left forearm disabilities, to include arthritic involvement and arthralgias, is granted. REMAND At issue in this case is the Veteran's entitlement to service connection for disability manifested by pain of the right ankle, arthritis, and osteoporosis, to include as secondary to service-connected renal failure and postoperative residuals of a kidney transplant. Only the left ankle was addressed in terms of its nexus to service and/or service-connected disabilities during the course of VA medical examinations conducted in 2007 and, most recently pursuant to the Board's remand, in 2013, despite the Board's specific directive. Remand for corrective action is thus required. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, this portion of the appeal is REMANDED to the RO via the AMC for the following action: 1. Obtain for inclusion in the record any and all pertinent VA treatment reports not already on file. 2. Thereafter, afford the Veteran a VA medical examination in order to ascertain the nature and etiology of his claimed right ankle disorder. The claims file should be made available to the examiner in conjunction with that examination. Such examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The examiner is asked to address the following questions, offering a complete rationale for each opinion provided: a) Is it at least as likely as not (50 percent or more probability) that any existing right ankle disorder originated in service or is otherwise attributable to service or any event therein, including claimed injury? The VA examiner should offer his/her opinion on the basis of the Veteran's credible account of an inservice injury involving his right ankle. b) Is it at least as likely as not (50 percent or more probability) that any existing right ankle disorder of the Veteran was caused or aggravated by any service-connected disability or any disability related to his renal disease and kidney transplantation or treatment therefor? The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 3. Lastly, readjudicate the lone remaining issue on appeal and if the benefit sought is not granted to the Veteran's satisfaction, then provide him a supplemental statement of the case prior to returning the case to the Board for further appellate review. No action by the appellant is required until he is further notified. The appellant 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. 2013). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs