Citation Nr: 1804774 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-31 374A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an initial compensable rating for focal segmental glomerulosclerosis (FSGS) with hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1989 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted entitlement to service connection for the Veteran's kidney condition and established a zero percent rating. The Veteran seeks a higher initial rating. The Veteran appeared before the undersigned Veterans Law Judge in a Central Office hearing in January 2017 to present testimony on the issue on appeal. During the hearing, the matter was raised as to whether the Board also has jurisdiction over an increased rating claim for the Veteran's service-connected hypertension as being inextricably intertwined with the current increased rating claim for FSGS. After a complete review of the record, as will be described in full below, the Board finds that the matter of the Veteran's hypertension is best addressed, not as a separate claim for an increased rating, but as part and parcel of rating the Veteran's FSGS under Diagnostic Code (DC) 7536 which instructs rating as renal dysfunction under 38 C.F.R. § 4.115a. Rating as renal dysfunction explicitly requires consideration of the Veteran's rating for hypertension under DC 7101. However, this matter has been directly addressed by the RO in a notation finding clear and unmistakable error in a prior rating decision with regard to the separate grant of service connection benefits for hypertension. Rating decision, April 2015. The RO, however, did not take action to correct this error due to the pending appeal before the Board. As the Board does not have jurisdiction to address such an RO error in the first instance, the Board will include a directive for the Agency of Original Jurisdiction (AOJ) to address this matter appropriately in the remand below. The record also contains a significant body of evidence that has been received since the last Statement of the Case was issued by the RO in October 2013. The Veteran's representative has explicitly requested review of this evidence by the AOJ. See Statement by the Veteran's representative, February 2017. However, as additional development is required as described in the remand section below, the AOJ will now review all additional evidence in the first instance. The Veteran has raised a motion to advance this case on the docket in his substantive appeal submitted in November 2013. The Veteran expressed that he desired advancement "due to the unpredictability of this disease." VA Form 9, November 2013. Generally, appeals must be considered in docket order, but may be advanced on the docket upon a showing of sufficient cause. 38 U.S.C. § 7107 (2012); 38 C.F.R. § 20.900 (2017) (noting examples of sufficient cause where an appellant is seriously ill or under severe financial hardship). Here, although the Board is sympathetic to the potentially variable nature of the Veteran's disability, the Board does not find that there is sufficient evidence to demonstrate that this rises to the level of severity contemplated as sufficient cause for advancement on the docket. As such, the Veteran has not shown sufficient cause to warrant advancement, and his motion is denied. Finally, the Board notes that the Veteran has described a number of other conditions that he believes to be secondary to his service-connected FSGS, to include joint pain, erectile dysfunction, and feelings of anxiety or excessive worry. See Hearing transcript, January 2017. Although symptoms of "generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion" are explicitly considered by the rating schedule for the Veteran's kidney disability, some of the types of additional symptoms or conditions described by the Veteran are not. At the January 2017 hearing, the Veteran was advised to consider filing separate claims for secondary service connection on these additional conditions. The Veteran's representative acknowledged the recommendation, but the record does not reflect that any such claims for secondary service connection have since been filed. The Veteran is reminded that effective March 24, 2015, a change in the pertinent regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. The Veteran must complete the application form prescribed by the Secretary should he wish to claim entitlement to compensation for other conditions secondary to his service-connected FSGS with hypertension. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Additional evidentiary development is required before the Board may address the merits of the Veteran's claim. The Veteran's most recent VA examination for kidney conditions and hypertension was in August 2014. The Veteran asserts that his service-connected disability has worsened since that time. Hearing transcript, January 2017. A contemporaneous examination is warranted to establish the present severity of the Veteran's disability. Also in hearing testimony provided before the undersigned in January 2017, the Veteran's representative raised the matter of a clear and unmistakable error noted by the RO in the April 2015 rating decision codesheet. This error notation involved the grant of a separate 10 percent evaluation for hypertension as secondarily service-connected due to the Veteran's kidney disorder. However, under the relevant diagnostic code for renal dysfunction, certain levels of hypertension warrant higher ratings for renal dysfunction. 38 C.F.R. § 4.115a. At the time of the April 2015 rating decision, it was noted that the Veteran had a pending appeal at the time, so no corrective action was being taken. However, the Board finds that the action necessary to correct such an error is jurisdictionally best effectuated at the level of the AOJ. The AOJ should correct the noted clear and unmistakable error, applying the rating criteria for renal dysfunction with hypertension under 38 C.F.R. § 4.115a. Finally, the Board finds that it would be helpful to provide a detailed description of the rating criteria employed in the evaluation of the Veteran's kidney disorder. Under the pertinent rating criteria, renal dysfunction manifested by albumin and casts with history of acute nephritis; or, hypertension that is noncompensable under Diagnostic Code 7101, is to be assigned a noncompensable rating. Renal dysfunction manifested by constant albumin or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent (where hypertension is manifested by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where there is a history of diastolic pressure predominantly 100 or more and continuous medication is required for control), is to be assigned a 30 percent rating. 38 C.F.R. §§ 4.104 (DC 7101), 4.115a. Renal dysfunction manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling (hypertension manifested by diastolic pressure that is predominantly 120 or more), is to be assigned a 60 percent rating. Id. Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating. 38 C.F.R. § 4.115a. Renal dysfunction 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, warrants a 100 percent rating. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any relevant outstanding VA treatment records for the appeals period. 2. Schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the current severity of his service-connected kidney disease with hypertension. All laboratory testing deemed necessary by the examiner should be conducted pertinent to the rating criteria for renal dysfunction quoted above. The electronic claims file, and a copy of this remand should be made available to, and be reviewed by the examiner. The examiner is then specifically asked to respond to the following questions: a. Do the Veteran's lay descriptions of muscle weakness, joint pain, and fatigue medically represent "generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion" as identified in the rating schedule for renal dysfunction, as opposed to symptoms of other nonservice-connected disabilities? b. In your review of the pertinent medical records, medical history given by the Veteran, and personal examination of the Veteran, do the lay descriptions of observed swelling in the Veteran's ankles represent "transient or slight edema", "constant albuminuria with some edema", or "persistent edema and albuminuria"? c. Please describe, to the extent possible, the Veteran's relevant laboratory test history and hypertension readings as related to the rating criteria for renal dysfunction quoted in the body of this remand. A detailed rationale for any opinion expressed must be provided. If an examiner is unable to unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Take corrective action regarding the clear and unmistakable error noted in the April 2015 rating decision codesheet. 4. Undertake any other development deemed warranted, and then readjudicate the Veteran's claim on the basis of ALL additional evidence obtained since the issuance of the last Statement of the Case. The Veteran has NOT waived initial review of this evidence by the AOJ. The Veteran has also raised the matter of an extraschedular rating, and the AOJ should adjudicate the appropriateness of such a rating in the first instance. If the benefit sought on appeal is not fully granted, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal to the Board. 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). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).