Citation Nr: 1804254 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-24 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to restoration of an 80 percent rating for diabetic nephropathy with hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1955 to May 1957, from October 1961 to August 1962, from December 1979 to April 1984, and from September 20, 1990 to October 11, 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which implemented a reduction in rating, from 80 percent to 30 percent, for the Veteran's service-connected diabetic nephropathy with hypertension, effective October 1, 2015. The RO subsequently amended the reduction in rating, from 80 percent to 60 percent, based on a finding of a clear and unmistakable error in the July 2015 rating decision. The Veteran has initiated appeals as to issues relating to service connection for a cervical spine disability (to include neck pain), right hip disability, and sleep apnea. The agency of original jurisdiction (AOJ) has yet to issue him a statement of the case (SOC) as to those matters. Thus, they are not in proper appellate status for the Board to address herein. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In July 2015, the RO reduced the rating for diabetic nephropathy with hypertension from 80 percent to 30 percent, effective October 1, 2015; in April 2016, the RO amended the rating reduction to 60 percent, instead of 30 percent, based on a finding of clear and unmistakable error in the July 2015 determination. 2. The RO's ultimate decision to reduce the rating for diabetic nephropathy with hypertension, from 80 percent to 60 percent, was in compliance with applicable due process laws and regulations, and was supported by evidence establishing that there was actual improvement in the Veteran's diabetic nephropathy with hypertension at the time of the July 2015 and April 2016 rating decisions and that the improvement will be maintained under the ordinary conditions of life. CONCLUSION OF LAW Restoration of an 80 percent rating for diabetic nephropathy effective October 1, 2015 (from the 60 percent assigned from that date) is not warranted. 38 U.S.C. § 1155, 5112(b)(6) (2012); 38 C.F.R. §§ 3.103, 3.105, 3.344, 4.1, 4.2, 4.7, 4.115a, 4.115b, Diagnostic Code (Code) 7530 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C. § 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Cases involving rating reductions are governed by specific regulations, which are addressed in more detail below, and do not require additional notice outside of those regulations. 38 C.F.R. § 3.105(e); 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Here, the RO properly notified the Veteran in January 2015 of the proposed reduction of the 80 percent rating for diabetic nephropathy, of a 60-day period in which to present additional evidence to show that a reduction was not warranted, and of his right to a pre-determination hearing; and properly notified him of a final rating decision that implemented the reduction (effective the last day of the month in which the 60-day period from the date of notice of the final rating action expired). Thus, VA has satisfied its duty to notify. Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C. § 5103A(a), (b) and (c). The Veteran was afforded the opportunity for a personal hearing, but declined a hearing. The RO has obtained the Veteran's VA medical records. He has not identified any additional available evidence, such as private medical evidence, for consideration in his appeal. He was provided examinations in April 2014 and June 2015, and VA obtained a medical advisory opinion in the matter (regarding the nature and severity of the diabetic nephropathy with hypertension) in November 2017. 38 U.S.C. § 5103A(d). As there is no indication of the existence of additional evidence to substantiate the claim, VA has satisfied its duty to assist. Legal Criteria, Factual Background, and Analysis The Veteran contends that the reduction from 80 percent to 60 percent for diabetic nephropathy with hypertension, effective October 1, 2015, was improper because the medical evidence did not show actual improvement in the disability and because the RO relied on the findings of a single VA examination, rather than a review of the entire history of the disability, to implement the reduction. He seeks restoration of the 80 percent rating. A March 2014 rating decision granted the Veteran service connection for diabetic nephropathy, assigning an 80 percent rating, effective October 24, 2012. (Service connection for hypertension was already established separately, effective in 1984, and in March 2014 the RO granted a (separate) 10 percent rating for hypertension, effective in August 1995.) The rating decision was based in part on a February 2014 report of VA examination. On that examination, the diagnosis was diabetic nephropathy (initial diagnosis in 2012 was noted). The examiner (a nurse practitioner) stated that the Veteran had renal dysfunction (as indicated by certain laboratory markers) but not any signs or symptoms due to renal dysfunction. The examiner noted that laboratory studies performed in December 2013 showed a BUN of 41, creatinine of 1.5, and EGFR of 48. The kidney condition did not impact the Veteran's ability to work. Moreover, VA outpatient records at the time also showed the following, in terms of laboratory study findings of BUN, creatinine, and EGFR, respectively: 28, 1.7, and 42 in November 2012; 36, 1.6, and 45 in December 2012; 25, 1.4, and 52 in April 2013; and 29, 1.5, and 48 in September 2013. The laboratory records indicate that the reference range for normal findings is 6 to 22 mg/dL for BUN (blood urea nitrogen), 0.4 to 1.2 mg/dL for creatinine, and >60 ml/min for EGFR (estimate glomerular filtration rate). In a January 2015 rating decision, the RO proposed a reduction of the rating for nephropathy from 80 to 0 percent, based on an April 2014 VA examination report, which noted a BUN of 27 and no renal dysfunction or functional impairment related to the disability. A June 2015 VA examination report showed a BUN of 24 and indicated that there was mild renal dysfunction but no other signs or symptoms and no impact on the Veteran's ability to work. A July 2015 rating decision implemented the reduction in the rating for diabetic nephropathy with hypertension from 80 percent to 30 percent, effective October 1, 2015. At this point, the RO combined the Veteran's diabetic nephropathy and hypertension disabilities into a single disability entity, acknowledging that the criteria for a 30 percent (and a 60 percent) rating each contemplate hypertension. An April 2016 rating decision revised the reduction in the rating to 60 percent (instead of 30 percent), also effective October 1, 2015, finding there was clear and unmistakable error in the July 2015 decision, as the June 2015 VA examination noted there was renal dysfunction, an abnormal BUN, and an elevated creatinine level of 1.4. Under 38 C.F.R. § 3.103(b)(2), no award of compensation will be reduced unless the beneficiary is notified of such adverse action and has been provided a period of 60 days to submit evidence showing that the adverse action should not be taken. 38 C.F.R. § 3.103(b)(2) (2017). Here, the RO notified the Veteran through a letter in January 2015, regarding a rating decision in that same month, that it was taking adverse action by reducing the rating assigned for his diabetic nephropathy. He was afforded a 60 day period after the letter to submit evidence showing that the rating should not be reduced. He submitted a March 2015 statement from a VA primary care physician regarding his diabetic condition. Therefore, the record indicates that the RO complied with the specific notice provisions applicable to rating reductions. See 38 C.F.R. §§ 3.103(b)(2), 3.105(e). The critical question, then, becomes whether the reduction in rating was proper based on the evidence of record. With respect to whether the evidentiary requirements for reducing the disability rating has been met in this case, the Board notes that the particular provisions of 38 C.F.R. § 3.344(a) and (b), pertaining to stabilization of disability ratings, are not for application in this case because the 80 percent rating for the diabetic nephropathy had not been in effect for a period in excess of five (5) years. Rather, the 80 percent rating was only in effect from October 24, 2012 until the reduction was implemented on October 1, 2015. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (duration of rating is measured from effective date of actual reduction). According to 38 C.F.R. § 3.344(c), in cases where, as here, a rating has been in effect less than five years, examinations disclosing physical improvement in a disability warrant a rating reduction. See 38 C.F.R. § 3.344(c). A rating reduction must be based on improvement in a disability that reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21. A rating reduction must also be based on adequate examinations. Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that failure of examiner to review claims file rendered reduction decision void ab initio). Further, a rating reduction must have been supported by the evidence on file at the time of the reduction, although pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The focus of the reduction question is on whether there was improvement in the Veteran's diabetic nephropathy at the time of the proposed rating decision in January 2015, and the implementing rating decision in July 2015. Of record at the time of the reduction were reports of VA examination in April 2014 and June 2015, and VA outpatient records. The Veteran's diabetic nephropathy was rated 80 percent 38 C.F.R. § 4.115b, Code 7530 which provides for chronic renal disease requiring dialysis to be rated as renal dysfunction. Under 38 C.F.R. § 4.115a, which contains the criteria for evaluating renal dysfunction, a 60 percent rating is warranted when there is 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. Upon review of the record, the Board finds that the evidence supports a reduction in the rating for the Veteran's diabetic nephropathy with hypertension to 60 percent, effective October 1, 2015. Initially, it is noted that VA records do not demonstrate that the Veteran's hypertension was manifested by diastolic pressure predominantly 120 or more (i.e., the criterion for a 40 percent rating under 38 C.F.R. § 4.104, Code 7101), or even diastolic pressure predominantly 100 or more (i.e., the criterion for a 10 percent rating under Code 7101). Rather, the Veteran took continuous medication for hypertension and it appeared under control. The Board is in agreement with the RO's conclusions in the July 2015 and April 2016 rating decisions, finding that competent evidence showed actual improvement in the Veteran's disability before and after October 1, 2015 so as to warrant a reduction in the rating to 60 percent. The Board finds that the rating reduction that has been challenged was supported by evidence on file at the time of the reduction. The competent, including post-reduction, evidence, such as a November 2017 VA medical opinion interpreting pertinent laboratory findings in terms of whether they reflect underlying improvement, shows that the Veteran's diabetic nephropathy with hypertension demonstrated improvement to the extent that a 60 percent rating effective October 1, 2015 was properly assigned. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In addressing whether improvement in a disability is shown, the comparison point generally is the last examination on which the rating at issue was assigned. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). The Board's analysis in this case will focus on the two examinations prior to the July 2015 rating decision, which determined improvement had essentially been shown in the Veteran's diabetic nephropathy, and reduced the 80 percent rating then in effect for the disability. As mentioned above, prior to the rating reduction decision of July 2015, the Veteran was afforded two VA examinations to assess the severity of his diabetic nephropathy, in April 2014 and June 2015. Given that the RO relied on the objective findings on both examinations, the argument of the Veteran's representative in September 2017 that the rating reduction was improper because it was based on a single compensation is without merit. In any case, as was previously discussed, the provision of 38 C.F.R. § 3.344(a), which pertains to ratings that have continued for long periods at the same level (five years or more) and generally requires more than one examination to support a rating reduction determination, does not apply, because the 80 percent rating had been in effect for less than five years. On the April 2014 VA examination, laboratory studies showed that BUN was 27 (this, however, was marked as "normal" by the examiner), creatinine was 1.2 (normal), and EGFR was 62 (normal). There was no microalbuminuria. The examining physician indicated that the Veteran had no renal dysfunction (evidence of such would include persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2). The examiner also commented that there was no diagnosis of renal insufficiency or evidence of diabetic nephropathy at present. The examiner noted a history of one episode of acute renal failure (unknown cause) in April 2012, after which the Veteran's renal function returned to normal without a diagnosis of renal insufficiency. The examiner stated that there was no functional impairment related to the condition, and that the Veteran's kidney condition did not impact his ability to work. On the June 2015 VA examination, laboratory studies showed that BUN was 24 (abnormal), creatinine was 1.4 (just above the normal range of 0.4 to 1.2), and EGFR was 52 (abnormal). The examining physician commented that there was mild renal dysfunction, as evidenced by the abnormal laboratory findings, but stated that there were no signs or symptoms due to renal dysfunction and that the kidney condition did not impact the Veteran's ability to work. VA outpatient records considered by the RO at the time of the July 2015 rating reduction decision showed the following, in terms of laboratory study findings of BUN, creatinine, and EGFR, respectively: 26, 1.3, and 56 in July 2014; 34, 1.5, and 48 in October 2014; 25, 1.3, and 56 in January 2015; 28, 1.5, and 48 in February 2015; and 29, 1.3, and 56 in March 2015. The laboratory findings of BUN and creatinine levels, as shown on the VA examinations of April 2014 and June 2015, as well as the outpatient records at the time, are still indicative of abnormal results, or mild or slight renal dysfunction. Despite such objective indicators, it is noteworthy that the examiner stated that there was no functional impairment related to the diabetic nephropathy condition, and that there were no signs or symptoms due to renal dysfunction. Considering the evidence at the time of the July 2015 rating decision, the Board finds that it demonstrates actual improvement in the Veteran's diabetic nephropathy with hypertension and that he was able to function under the ordinary conditions of life and work without problems attributable to that disability. At the time of the initial VA examination in February 2014, upon which the RO largely based its decision to establish service connection for diabetic nephropathy, renal testing reflected BUN and creatinine levels that were higher, and an EGFR that was lower, (and thus all indicative of more severe renal dysfunction) than found on subsequent VA examinations upon which the RO based its rating reduction. Regarding the outpatient records, they show that laboratory study findings fluctuated over time and continued to show evidence of renal dysfunction. In any case, comparing the findings at the time of the assignment of an 80 percent rating to those at the time of the reduction in the rating to 60 percent, it is noteworthy that while BUN levels appeared to be about the same throughout, creatinine levels were generally lower and EGFRs were generally higher in the later period, evidencing a less severe renal dysfunction when the rating was reduced. Further comment on whether such evidence actually showed improvement was given by a VA examiner in November 2017, as will be discussed below. In short, she interpreted the laboratory results in such a way as to favor the RO's decision to reduce the Veteran's rating. For the foregoing reasons, the rating reduction to 60 percent for diabetic nephropathy with hypertension, effective October 1, 2015, was warranted. In support of his claim for restoration of the 80 percent rating, the Veteran has submitted a statement from a VA primary care physician, dated in March 2015. The physician asserted that the Veteran was a regular patient at the VA medical center for treatment of medical problems, to include "diabetic peripheral neuropathy," and that there had been "no improvement in this condition in the past several years." Notably, the provider cited to the Veteran's peripheral neuropathy, rather than the nephropathy at issue; therefore the statement is without probative value regarding whether there was improvement in the diabetic nephropathy to warrant a reduction in the rating to 60 percent. (Service connection has been established for diabetic peripheral neuropathy of the lower extremities (since October 2012) and for diabetic peripheral neuropathy of the upper extremities since March 2015.) The post-reduction records are consistent with the findings on the April 2014 and June 2015 VA examinations, and also support the determination that the RO's reduction from 80 percent to 60 percent for the diabetic nephropathy with hypertension was proper. That is, there continues to be a decrease in kidney function as shown by laboratory studies, but BUN level is not nearly as high as the 41 level shown on February 2014 VA examination, and the records do not show lethargy, weakness, anorexia, weight loss, or limitation of exertion due to the kidney condition. The Veteran was recently noted to have lost three pounds in October 2017, but it was noted that he had been emotionally distressed by a serious illness his wife was battling. Significantly, the medical opinion sought in November 2017, to interpret the prior and current laboratory findings in the context of whether there was improvement in the Veteran's underlying diabetic nephropathy since the February 2014 VA examination, is supportive of the RO's rating reduction determination. Following review of the record, the examining physician asserted that the Veteran still had mild renal insufficiency but that it had improved since the February 2014 VA examination. She noted that his EGFR remained in "Stage 3a," but his microalbuminuria had improved and was now normal. She added that the Veteran was asymptomatic from his renal insufficiency. In her report, she noted the results from both blood and urine laboratory studies from 2010 to September 2017 (the urinalysis included microalbumin levels). She explained the staging of chronic kidney disease in adults, as pertaining to GFR (glomerular filtration rate), and the relatively new staging of albuminuria (ACR, or albumin to creatinine ratio) in the kidney disease classification scheme. The examiner's findings are in accord with the RO's determination to reduce the diabetic nephropathy from 80 percent to 60 percent based on evidence that the disability had shown improvement and that the Veteran did not meet any of the following criteria for a 80 percent rating: 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. Such substantive medical evidence demonstrates definite improvement in the Veteran's condition. In short, there is competent evidence of change in the Veteran's diabetic nephropathy with hypertension to reflect actual improvement in his ability to function under the ordinary conditions of life and work to the extent that his disability is not more than 60 percent disabling under Code 7530. In summary, the RO complied with the procedures governing rating reductions found in 38 C.F.R. § 3.103(b)(2) and § 3.105(e) when it reduced the rating for the Veteran's diabetic nephropathy with hypertension effective October 1, 2015, and because the evidence of record at that time showed improvement in the disability to the extent that it was no more than 60 percent disabling under the pertinent rating criteria at that time, and because the post-reduction evidence also shows that a reduction to 60 percent was justified, restoration of an 80 percent rating for the Veteran's diabetic nephropathy with hypertension effective October 1, 2015 is not warranted. The preponderance of the evidence is against the Veteran's claim for restoration of the 80 percent rating previously assigned for diabetic nephropathy with hypertension. Accordingly, the benefit of the doubt doctrine does not apply. The appeal in this matter must be denied. See 38 C.F.R. § 5107(b). ORDER The appeal seeking restoration of an 80 percent rating for diabetic nephropathy with hypertension is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs