Citation Nr: 1805998 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-19 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date earlier than February 26, 2009, for the grant of service connection for a kidney disability. 2. Entitlement to an initial rating in excess of 30 percent for service-connected nephropathy with hypertension (kidney disability) REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from November 1970 to November 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. The Veteran's initial claim for service connection for a kidney disability was received on February 26, 2009. 2. The Veteran's kidney disability has not resulted in constant albuminuria with some edema; definite decrease in kidney function; or, hypertension with a diastolic pressure predominantly 120 or more. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 26, 2009, for the grant of service connection for a kidney disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). 2. The criteria for an initial rating in excess of 30 percent for a kidney disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7535 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined. The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Earlier Effective Dates A September 2009 rating decision granted the Veteran service connection for a kidney disability. Service connection was assigned with an effective date of February 26, 2009, the date his claim for service connection for a kidney disability was received by VA. The Veteran's asserts that he is entitled to an earlier effective date for the grant of service connection for his kidney disability as he had kidney symptoms during his active service. The general rule for earlier effective dates for service connection provides that if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation or the date entitlement arose. 38 U.S.C. § 5110 (b)(1). Here, there is no contention that a claim was received within a year of separation from service. If a claim is not received within a year of separation, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101 (a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the record shows that the first communication from the Veteran indicating an intent to apply for benefits was his claim for a kidney disability was received on February 26, 2009 (as much was conceded by the Veteran's representative in his December 2017 brief). While the Veteran asserts that he experienced kidney symptoms during his active service, which was the basis for the grant of service connection, he did not file his claim for benefits until February 26, 2009. An intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Despite the fact that the Veteran began experiencing kidney symptoms during his active service, the date entitlement arose, he did not file a claim for service connection until February 26, 2009, as such, the date of receipt of claim is the later of the date of entitlement and the date of claim, and VA regulations dictate that the date of receipt of claim should be the effective date that is assigned. Accordingly, the claim for an effective date earlier than February 26, 2009, for the grant of service connection for a kidney disability is denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In February 2009, the Veteran filed a claim seeking service connection for a kidney disability, which was granted by a September 2009 rating decision and initially evaluated at a noncompensable rate effective February 26, 2009. A March 2013 rating decision granted an increased rating of 30 percent effective February 26, 2009. The Veteran asserts that he is entitled to a higher rating. The Veteran's kidney disability is rated under Diagnostic Code 7535, which evaluates nephropathy based on renal dysfunction under Ratings of the genitourinary system - dysfunctions. Under Ratings of the genitourinary system - dysfunctions, a 30 percent rating is assigned for constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is assigned for 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 is assigned 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 assigned for 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. 38 C.F.R. §§ 4.4115a; 4.115b, Diagnostic Code 7535. The Veteran medical records show that his kidney function has been stable from 2008. His medical records also show that his hypertension is well-controlled with medications with no diastolic readings of 120 or more. In September 2009, the Veteran was afforded a VA examination. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner diagnosed the Veteran with hematuria and proteinuria. In April 2017, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had constant proteinuria due to his kidney disability, but did not have edema, anorexia, weight loss, generalized poor health, lethargy, weakness, limitation of exertion, was only able to perform sedentary activity, or had markedly decreased function of other organs. His blood pressure readings were 132/86, 140/90, and 132/86. Thus, applying the regulations to the facts in the case, the Board finds that the criteria for a disability rating in excess of 30 percent are not met for the Veteran's kidney disability. The Veteran's kidney disability has not resulted in constant albuminuria with some edema or a definite decrease in kidney function. The Veteran's hypertension has not resulted in a diastolic pressure predominantly 120 or more. As such, a rating in excess of 30 percent is not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but has found that no other Diagnostic Codes would result in more favorable findings. As such, the schedular rating criteria reasonably describe the symptoms caused by the service connected disability on appeal. The criteria for a schedular rating in excess of 30 percent for the Veteran's kidney disability have not been met and his claim is denied. ORDER An effective date earlier than February 26, 2009, for the grant of service connection for a kidney disability is denied. An initial rating in excess of 30 percent for a kidney disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs