Citation Nr: 18142721 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-15 045A DATE: October 16, 2018 ORDER Entitlement to a rating in excess of 60 percent for polycystic kidney disease with hypertension from November 3, 2011, onward, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for residuals of a bilateral hamstring injury is remanded. Entitlement to service connection for blurred vision is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for an irregular heart beat is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran’s polycystic kidney disease has been characterized by a decrease in kidney function; persistent edema and albuminuria, creatine of between 4 and 8 mg%, BUN of between 40 to 80 mg%, and generalized poor health have not been shown. 2. The Veteran’s service-connected disabilities are severe enough to render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 60 percent for polycystic kidney disease with hypertension from November 3, 2011, onward, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7533. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to December 1989, November 1990 to April 1991, and from March 2003 to June 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA). In a March 2017 rating decision, the Veteran was granted service connection for posttraumatic stress disorder and schizophrenia. He has not disagreed with the assigned rating. As such, this issue is no longer on appeal. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009). The Board acknowledges that additional records have been associated with the claims file since the most recent statement of the case. Specifically, the Veteran’s representative has submitted a vocational consultation. If a veteran’s substantive appeal is received on or after February 2, 2013, an automatic waiver of initial review by the agency or original jurisdiction (AOJ) is applied for new evidence submitted to the AOJ or the Board. 38 U.S.C. § 7105(e). Therefore, a remand is unnecessary in this instance. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 60 percent for polycystic kidney disease with hypertension from November 3, 2011, onwards The Veteran is seeking a higher rating for his polycystic kidney disease with hypertension. He currently receives a 60 percent rating for his disability under 38 C.F.R. § 4.115b, DC 7512, referring to chronic cystitis. However, as there is a specific diagnostic code for polycystic kidney disease, DC 7533, the Veteran’s diagnostic code should be changed. However, such a change will not result in any change in the Veteran’s ratings as the Veteran’s condition was previously evaluated as renal dysfunction, which is mandated by DC 7533. Under this diagnostic code: • A 60 percent rating is warranted for constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. • An 80 percent rating is warranted for renal dysfunction with persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80 mg%, creatinine of 4 to 8 mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 38 C.F.R. § 4.115b, DC 7533. The Board finds that the Veteran is not entitled to a rating in excess of 60 percent for his polycystic kidney disease with hypertension. During the appeal period, the Veteran’s testing results were remarkably consistent with the testing conducted soon before the start of the appeal period. Initially, in September 2011, the Veteran underwent medical testing on two occasions that indicated a BUN of 13mg% and 20mg% with a creatine of 1.6 mg% and 1.8 mg%, respectively. The testing conducted following the beginning of the appeal period did not provide any indicators of a worsening of the Veteran’s condition. For example, the Veteran had a BUN of 14mg% and creatine of 1.2mg% in December 2012. He had a creatine of 1.3mg% in February 2013 with a BUN of 15mg% in January 2014. From January 2016 to May 2017, his creatine ranged from 1.3mg% to 1.7mg%. His BUN ranged from 14mg% to 25mg% during the same time period. There are no indications that his BUN or creatine levels approached the threshold of 40mg% and 4mg%, respectively, which would warrant an 80 percent rating. In addition to the Veteran not meeting the numerical criteria for an 80 percent rating, his health during the appeal period was not generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Rather, after a March 2012 VA examination, the examiner noted that the Veteran received no treatment and took no medications for his disease, but he did change his diet. He also took medication for his hypertension. The examiner also noted an absence of renal dysfunction, including no albuminuria, edema, weight loss, generalized poor health, lethargy, or weakness. Importantly, the Veteran also had no reported urinary tract or kidney infections. The Board acknowledges that in January 2016, a medical provider noted that the Veteran had uncontrolled benign essential hypertension. As the diagnostic code for renal dysfunction explicitly includes consideration of the severity of the Veteran’s hypertension, they both must be considered together. Nevertheless, the Veteran’s medical provider only diagnosed the Veteran with stage 3, moderate, kidney disease in April 2016. Moreover, the Veteran’s March 2017 VA examination closely mirrored his March 2012 VA examination. Specifically, the Veteran did not take continuous medication for his kidney disease, but he did take medication for his hypertension. There continued to be no evidence of urolithiasis, recurrent urinary tract or kidney infections, or a transplant. There is insufficient medical evidence in the record to demonstrate that the Veteran’s condition was severe enough to cause symptoms such as lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Board concludes that the Veteran’s assigned 60 percent rating already fully takes into account the severity of the Veteran’s kidney disease. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his disability is worse than the rating he currently receives. In April 2016, the Veteran stated that his kidney disease was getting progressively worse with the possibility of dialysis in the near future. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. In this case, the medical evidence indicates that the Veteran’s condition has been stable throughout the appeal period and there is insufficient evidence in the record to demonstrate that his kidney condition is severe enough to warrant an 80 percent rating. 2. Entitlement to a TDIU The Veteran asserts that his multiple service-connected disabilities make him unable to find or maintain employment. Specifically, he cites his posttraumatic stress disorder (PTSD), schizophrenia, and polycystic kidney disease. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. This is so provided the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the present case, the Veteran’s service-connected disabilities include PTSD, schizophrenia, polycystic kidney disease, and low back strain. As of November 3, 2011, he received a 60 percent rating for his polycystic kidney disease with hypertension. Additionally, he was assigned a 70 percent rating for his service-connected PTSD and schizophrenia. Finally, he was already in receipt of a 10 percent rating for his low back strain. The ratings combine to 90 percent from November 3, 2011. The Board agrees that the Veteran’s service-connected disabilities are sufficiently severe to produce unemployability. The combined effects of the Veteran’s disabilities render him unable to obtain or maintain substantially gainful employment. Initially, the Board notes that there are discrepancies regarding when the Veteran last completed substantially gainful employment. A December 2016 TDIU application reflects that the Veteran worked as a truck driver from May 2007 to June 1, 2012. A February 2018 TDIU application reflects that he worked as a truck driver from March 2008 to June 1, 2013. However, a statement from the Veteran’s previous employer indicates that he last worked on and was paid on July 24, 2014. Despite the inconsistencies regarding the date the Veteran last worked, the Board still concludes that a TDIU is warranted. A September 2016 medical treatment record includes the Veteran’s statement that he has been unable to work due to panic attacks. A March 2017 VA examiner noted extremely severe symptoms that would make employment extremely difficult. The examiner noted that the Veteran had memory loss severe enough to forget the names of his close relatives, own occupation, or own name. He also had obsessional rituals which interfered with routine activities as well as a neglect of his personal appearance and hygiene. Any job, whether sedentary or active, would be significantly more difficult with these attributes. A February 2018 analysis performed by an outside medical provider noted that the Veteran is socially isolated and withdrawn. He struggles to perform some of his daily living tasks. For example, he does his food shopping in off-peak times to avoid crowds and struggles with personal hygiene. He also reported that he has suffered from both auditory and visual hallucinations. The medical provider opined that the Veteran could not sustain the stress from a competitive work environment. She cited the Veteran’s inability to obtain restful sleep and the resulting fatigue that would create a safety issue in the workplace. His memory difficulties and mood problems would lead to problems at work. Additionally, he suffers from ongoing anxiety issues and with his paranoia, would struggle with appropriate work interactions. The Board notes that the Veteran’s symptomatology would almost certainly make it impossible to resume his previous position as a truck driver. In a March 2017 VA examination, the Veteran had no urolithiasis or recurrent urinary tract or kidney infections, and therefore the examiner concluded that his kidney condition would not impact his ability to work. However, the Board recognizes that the kidney disease’s associated hypertension could prevent the Veteran from maintaining a commercial driver’s license. With regards to his low back strain, a January 2017 VA examiner noted the Veteran’s complaint of worsening low back pain, which necessitated the regular use of a brace. The examiner concluded that as a result, the Veteran would require assistance with physical activities such as pushing, pulling, lifting, or carrying moderate loads. Therefore, it is unclear what substantially gainful employment the Veteran could obtain and maintain. As the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities, the Board concludes that a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a bilateral hamstring injury is remanded. The Veteran is seeking service connection for residuals of a bilateral hamstring injury in service. The Board has combined the claims for the left and right lower extremities in order to simplify the claim. The Veteran asserts that his hamstrings have been problematic since service and that he suffers from recurrent cramps as a result of his injury. His separation medical board examination documents that he suffered a hamstring injury in March 2003. However, it is unclear whether the event was a one-time injury without residuals or whether the Veteran suffers from a current disability that can be linked to the injury. As there is insufficient medical evidence to decide the claim, the Veteran should be afforded a VA examination to determine the nature of any bilateral hamstring disorder and the relationship, if any, of such disability to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for blurred vision is remanded. 3. Entitlement to service connection for dizziness is remanded. 4. Entitlement to service connection for an irregular heart beat is remanded. 5. Entitlement to service connection for headaches is remanded. The Veteran is seeking service connection for several symptoms, many of which, if not all, may be related to his service-connected disabilities of polycystic kidney disease with hypertension and posttraumatic stress disorder (PTSD) with schizophrenia. He is seeking service connection for blurred vision, dizziness, headaches, and an irregular heartbeat. His service treatment records document that he complained of blurred vision during service, which he believed was a byproduct of his headaches that he asserted were due to his elevated blood pressure. In April 2016, he stated that he developed blurred vision in Iraq and his vision has remained diminished since that time. In November 2016, the Veteran visited a VA medical provider to discuss the issue. He was diagnosed with dry eye and hyperopia/astigmatism/presbyopia. However, the medical provider never explained his blurred vision. Similarly, the Veteran’s service treatment records document that he complained of both headaches and dizziness during service in June 2003. In November 2010, the Veteran reported occasional dizziness in the morning along with headaches once or twice a week. In April 2016, he stated that he developed dizziness and headaches during active duty that continue to this day. The Board notes that in December 2016, he suggested that his dizziness is related to his anxiety and a March 2012 VA examination for hypertension indicates that the Veteran’s headaches may be a symptom of that disorder. Finally, the Veteran complained of a rapid heart rate during service, but his separation medical board examination noted only a regular rhythm. In October 2016, he was diagnosed with a normal sinus rhythm with mild bradycardia in the early morning hours. Each of the above symptoms may constitute disorders that can be service-connected. It is possible that at least some of the Veteran’s symptoms are manifestations of his service-connected polycystic kidney disease and his service-connected PTSD with schizophrenia. As there is insufficient medical evidence to decide the claim, the Veteran should be afforded VA examinations to determine the nature of all of these symptoms and the relationship, if any, of such symptoms to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hamstring disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his documented pulled hamstring in March 2003. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any vision disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The clinician should also opine whether the Veteran’s vision disorder is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected polycystic kidney disease and/or psychiatric disorder. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any dizziness. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The clinician should also opine whether the Veteran’s dizziness is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected polycystic kidney disease and/or psychiatric disorder. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any irregular heartbeat. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The clinician should also opine whether the Veteran’s irregular heartbeat is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected polycystic kidney disease and/or psychiatric disorder. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headaches. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The clinician should also opine whether the Veteran’s headaches are at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran’s service-connected polycystic kidney disease and/or psychiatric disorder. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel