Citation Nr: 1802901 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-10 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for hypertension prior to September 16, 2013. 2. Entitlement to a rating in excess of 30 percent for stage 2 renal disease associated with hypertension since September 16, 2013. 3. Entitlement to service connection for anemia. ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to November 1996 and was awarded the National Defense Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for anemia and denied a rating in excess of 10 percent for hypertension. The Veteran died in August 2015. In September 2015, the Board dismissed the above claims due to lack of jurisdiction upon the death of the Veteran during the pendency of the appeal. The Appellant is the Veteran's surviving spouse. In March 2016, the Appellant submitted a Request for Substitution of Claimant upon Death of Claimant form. In a July 2017 notification letter, the RO determined the Appellant is a proper substitute under 38 C.F.R. § 3.1000(a)(1)(i). In light of this determination, the Board will proceed to adjudicate the merits of this appeal as the Appellant now steps into the shoes of the Veteran. The Board notes that in December 2010 the Veteran originally submitted a claim for an increased rating for her service-connected hypertension. In September 2013, the Veteran submitted a claim for entitlement to service connection for stage 2 renal disease as secondary to service-connected hypertension. The claims were developed as such. In a November 2013 rating decision, the RO granted service connection for stage 2 renal disease with hypertension, assigning a 30 percent rating effective September 16, 2013 and combining the rating with the Veteran's 10 percent rating for hypertension, as required under 38 C.F.R. § 4.115, as stage 2 renal disease is not a separate condition from hypertension but rather a progression of the disease. As the evaluations of 10 percent for hypertension and 30 percent stage 2 renal disease do not represent a total grant of the benefits sought on appeal, the claims for increased initial evaluations remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for anemia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 26, 2013, the Veteran's hypertension was manifested by diastolic pressure predominantly 110 or more but not diastolic pressure predominantly 120 or more. 2. Since June 26, 2013, the Veteran's stage 2 renal disease with hypertension has manifested in renal dysfunction with hypertension at least 10 percent disabling but not hypertension at least 40 percent disabling under Diagnostic Code 7101. It was not manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or, persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSION OF LAW 1. The criteria for an increased disability rating of 20 percent, but no higher, for hypertension are met, for the period prior to June 26, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2017). 2. Since June 26, 2013, the criteria for a disability rating of 30 percent, but no higher, for stage 2 renal disease with hypertension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.115, 4.115a, 4.115b, Diagnostic Code 7502. REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings for each service-connected disability are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. 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's hypertension is rated as 10 percent disabling prior to September 16, 2013 under 38 C.F.R. § 4.104, Diagnostic Code 7101 for hypertensive vascular disease. Since September 16, 2013, the Veteran's hypertension has been associated with stage 2 renal disease and rated as 30 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7502 for chronic nephritis. Diagnostic Code 7101 provides for a 10 percent rating when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided if diastolic pressure is predominantly 110 or more, or if systolic pressure is predominantly 200 or more. A 40 percent rating is provided if diastolic pressure is predominantly 120 or more. A 60 percent rating is provided if diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). Nephrosclerotic nephritis, originating in hypertension or arteriosclerosis, develops slowly with minimal laboratory findings, and is associated with natural progress. 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. An absent kidney or chronic renal disease requiring regular dialysis are the only two exceptions that would allow for separate ratings of nephritis and a heart disorder. 38 C.F.R. § 4.115. Diagnostic Code 7502 for chronic nephritis uses the criteria for renal dysfunction to establish disability ratings. 38 C.F.R. § 4.115b, Diagnostic Code 7502. For situations where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension is at least 10 percent disabling under Diagnostic Code 7101, a 30 percent rating is warranted. 38 C.F.R. § 4.115a. For constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension is at least 40 percent disabling under Diagnostic Code 7101, a 60 percent rating is warranted. Id. 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, an 80 percent rating is designated. Id. Disabilities requiring 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, merit a 100 percent rating. Id. Albuminuria is also known as proteinuria and is the presence of an excess of serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995). Edema is the presence of abnormally large amounts of fluid in the intercellular tissue spaces of the body. Evans v. Brown, 9 Vet. App. 273, 277 (1996). VA treatment records from dated December 2010 to January 2011 document blood pressure readings of 116/63, 127/72, 112/72, and 114/72. Subsequent VA treatment records from April 2013 to May 2013 document blood pressure readings ranging from 117/80 to 163/110 with an isolated incident of blood pressure at 133/134 on April 27, 2013. Significantly, three blood pressure readings in May 2013 show diastolic pressure of 110 or more (157/110, 182/112, 170/116). A June 2013 summary of at-home readings reveals diastolic pressure generally under 110, with only two readings showing diastolic pressure over 110- a June 5, 2013 reading of 152/115 and a June 21, 2013 reading of 140/118. Treatment records also show that the Veteran was prescribed multimode blood pressure medications, including hydrochlorothiazide, chlorthalidone, lisinopril, and doxazosin. At a nephrology consultation on June 26, 2013, the Veteran was diagnosed with stage 2 renal disease presumed related to hypertension based upon her creatinine clearance levels. July 2013 blood pressure readings generally showed diastolic pressure under 110 and systolic pressure under 160. Although the Veteran also had one July 14, 2013 blood pressure reading of 164/136, this was determined to be an outlier by the Veteran's treating nephrologist. At a nephrology consultation on July 23, 2013, the Veteran had a blood pressure reading of 143/105. Blood pressure readings from August 2013 to November 2013 document diastolic pressure ranging from 72 to 100 and systolic pressure under 160. At-home blood pressure readings from December 2013 to January 2014 document diastolic pressure ranging from 39 to 135, with only three incidents of diastolic pressure at 110 or more on December 12, 2013 (145/135), December 24, 2013 (150/110), and January 3, 2014 (135/120). Based on review of the foregoing, the Board finds that the disability picture for the Veteran's hypertension from December 10, 2010 most closely approximated the criteria for a 20 percent rating. The evidence of record reflects that prior to June 26, 2013 the Veteran consistently had diastolic pressure that ranged from the 80s to over 110 and consistently trended upward. The Board also acknowledges three readings in April 2013, July 2013, and January 2014 when the Veteran's diastolic pressure was over 130. However, in this regard, the Board notes that those readings are isolated and remote in nature, as determined by the Veteran's treating nephrologist, and finds that the Veteran's diastolic pressure was predominantly 110 or more but not predominantly 120 or more. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The Board acknowledges that at times the Veteran's hypertension has resulted in diastolic pressure at less than 110, but finds that the Veteran's overall disability picture for service-connected hypertension more nearly approximates and supports the assignment of a 20 percent rating, and not higher, under Diagnostic Code 7101 since December 10, 2010. See 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Based on the Board's grant of a 20 percent rating for service-connected hypertension herein, and the review of the evidence, the Veteran's overall disability for stage 2 renal disease with hypertension most closely approximates a 30 percent rating as of June 26, 2013, the date chronic kidney disease became factually ascertainable. 38 C.F.R. § 4.115b, Diagnostic Code 7502. A higher, 60 percent rating for stage 2 renal disease is not warranted at any time during the appeal because the evidence does not reflect constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. The criteria for an 80 percent rating also have not been met as 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 have not been shown. All of the recorded BUN and creatine levels record are significantly less than the BUN to 40 to 80mg or creatinine to 4 to 8mg required for an 80 percent rating. Moreover, the need for 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, warranting a 100 percent rating, has not been shown. ORDER An evaluation of 20 percent, but no higher, for service-connected hypertension is granted from December 10, 2010 to June 26, 2013. An evaluation of 30 percent, but no higher, for service-connected stage 2 renal disease with hypertension is granted from June 26, 2013. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claim of entitlement to service connection for anemia is decided. At an April 2011 VA examination, the Veteran was found to have mild anemia related to menorrhagia. In a February 2014 VA examination report, the examiner opined that the Veteran did not have anemia in service based on a February 1994 complete blood count, which documented hemoglobin of 12.4gm/dL. He also opined that the Veteran's renal disease was not aggravated by her history of iron deficiency anemia. Significantly, however, the examiner did not address the Veteran's May 1993 complete blood count that revealed hemoglobin of 4.62gm/dL. Nor did he address the Veteran's in-service complaints and treatment for pre-syncope, headaches, fatigue, dizziness with exercise, or shortness of breath. A July 2013 nurse practitioner note also stated the Veteran had a history of anemia since 1992. The examiner's statements regarding the lack of lab results showing low hemoglobin counts during service are inaccurate and reflect a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of service medical records to provide a negative opinion). Based on the foregoing deficiencies, the Board finds that the VA examiner's opinions are inadequate and another opinion is necessary prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file, including a copy of this remand, to the individual who conducted the February 2014 VA examination, or another examiner if that individual is unavailable, to provide an addendum opinion. The examiner should respond to the following: a. Is the Veteran's anemia at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, of the Veteran's May 1993 hemoglobin of 4.62gm/dL and complaints of fatigue, pre-syncope, headaches, dizziness with exercise, or shortness of breath during service. The examiner should note that the term "current diagnosis" of anemia means occurring at any time during the pendency of the Veteran's claim; i.e., from December 2010 onward. It is sufficient if anemia previously existed during the pendency of the claim and then resolved. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefit sought on appeal remains denied, the appellant should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs