Citation Nr: 18151966 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-05 783 DATE: November 20, 2018 ORDER The rating reduction from 100 percent to 80 percent effective November 1, 2012, for chronic renal failure with hypertension, status-post kidney transplant with scar, was proper. FINDINGS OF FACT 1. In a rating decision dated on October 26, 2002, the Agency of Original Jurisdiction (AOJ) granted the Veteran’s increased rating claim for chronic renal failure with hypertension, status-post kidney transplant with scar (which was characterized as chronic renal failure due to focal segmental glomerulosclerosis with hypertension) (“kidney disability”), assigning a 100 percent rating effective March 23, 2001. 2. The record evidence shows that the Veteran had a kidney transplant on August 8, 2008. 3. The 100 percent rating for the Veteran’s service-connected kidney disability was in effect for more than 5 years when it was reduced to 30 percent effective November 1, 2012. 4. In a rating decision dated on December 11, 2014, the AOJ assigned a higher 80 percent rating effective November 1, 2012, for the Veteran’s service-connected kidney disability. 5. Reexaminations disclosed sustained improvement in the Veteran’s service-connected kidney disability. CONCLUSION OF LAW The reduction of the disability rating for chronic renal failure with hypertension, status-post kidney transplant with scar, by the August 2012 rating decision, was proper; the criteria for a reduction in the disability rating from 100 percent to 80 percent effective November 1, 2012, have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.344, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7531 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1983 to November 1996, including in combat in the Persian Gulf War. An RO hearing was held on the Veteran’s claim in April 2014. The Veteran subsequently failed to report, without good cause, for a subsequent RO hearing and a Travel Board hearing scheduled in January 2017 and in January 2018, respectively. See 38 C.F.R. § 20.704 (2017). This matter comes before the Board on appeal from an August 2012 rating decision in which the AOJ reduced the disability rating from 100 percent to 30 percent effective November 1, 2012, for the Veteran’s service-connected chronic renal failure with hypertension, status-post kidney transplant with scar. After the Veteran timely disagreed with this rating reduction, the AOJ then promulgated a Statement of the Case (SOC) in which it listed the issue on appeal as an increased rating claim for chronic renal failure with hypertension, status-post kidney transplant with scar. The Board observes that, in Green v. Nicholson, 21 Vet. App. 512, 2006 WL 3438028 (Vet. App.), the United States Court of Appeals for Veterans Claims (Court) held that, in cases where a rating reduction is on appeal, “the Board must determine whether the reduction of the Veteran’s disability rating was proper and must not phrase the issue in terms of whether the Veteran was entitled to an increased rating, including whether the Veteran was entitled to restoration of a previous rating.” Id., at pp. 3. The Veteran in Green appealed the Board’s denial of a claim for restoration of a 100 percent rating for service-connected prostate cancer. Although the Board recognizes that single-judge memorandum decisions of the Court are not binding precedent, the unpublished single-judge memorandum decision of the Court in Green can be considered persuasive authority in this appeal. The Board next notes that, in a December 2014 rating decision, the AOJ assigned a higher 80 percent rating effective November 1, 2012, for the Veteran’s service-connected chronic renal failure with hypertension, status-post kidney transplant with scar. Having reviewed the record evidence, to include the Veteran’s consistent lay statements questioning the propriety of the initial rating reduction from 100 percent to 30 percent effective November 1, 2012, the Board finds that this issue should be characterized as stated above. 1. Whether a rating reduction from 100 percent to 80 percent effective November 1, 2012, for chronic renal failure with hypertension, status-post kidney transplant with scar, was proper The Board finds that the rating reduction from 100 percent to 80 percent effective November 1, 2012, for chronic renal failure with hypertension, status-post kidney transplant with scar, was proper. See generally 38 C.F.R. § 3.344 (2017). The Veteran essentially challenges the propriety of the rating reduction for the service-connected chronic renal failure with hypertension, status-post kidney transplant with scar, which the AOJ implemented in the currently appealed rating decision issued in August 2012. He essentially contends that his chronic renal failure with hypertension, status-post kidney transplant with scar, has not improved and remained totally disabling throughout the appeal period, rendering the rating reduction improper. The record evidence does not support his assertions and shows that there was sustained improvement in his service-connected chronic renal failure with hypertension, status-post kidney transplant with scar, on reexamination. In considering the propriety of the reduction, the Board observes that, in an October 2002 rating decision, the AOJ granted the Veteran’s increased rating claim for chronic renal failure with hypertension, status-post kidney transplant with scar (which was characterized as chronic renal failure due to focal segmental glomerulosclerosis with hypertension) (“kidney disability”), assigning a 100 percent rating effective March 23, 2001. The AOJ concluded that a 100 percent rating was appropriate for the Veteran’s service-connected kidney disability because the medical evidence showed that he was on daily peritoneal dialysis due to renal dysfunction. As noted elsewhere, the AOJ reduced the disability rating for the Veteran’s service-connected kidney disability from 100 percent to 30 percent effective November 1, 2012, in the currently appealed rating decision issued in August 2012. The Board notes here that the AOJ correctly followed the due process procedures for rating reductions outlined in 38 C.F.R. § 3.105(e). See 38 C.F.R. § 3.105(e) (2017). The 100 percent rating for kidney disability was in effect for more than 5 years when it was reduced to 30 percent effective November 1, 2012. See 38 C.F.R. § 3.44(c) (2017). The AOJ concluded in the August 2012 rating decision that the rating reduction was warranted because a May 2011 VA examination found no symptoms of renal failure other than mild fatigue which was caused by anti-rejection medications taken by the Veteran. The AOJ also concluded that the medical evidence, taken together, showed that the Veteran had done “extremely well” since his August 2008 kidney transplant surgery. As also noted elsewhere, the AOJ subsequently assigned a higher 80 percent rating effective November 1, 2012, for the Veteran’s service-connected kidney disability in a December 2014 rating decision. The AOJ concluded in the December 2014 rating decision that an 80 percent rating was warranted effective November 1, 2012, because an October 2014 VA examination showed that the Veteran experienced residuals of renal dysfunction and limitation of exertion as a result of his service-connected kidney disability. The AOJ also noted that the Veteran’s creatinine level was within normal limits “and there were no signs of impairment in your health” due to his service-connected kidney disability. The Board finds that the medical evidence supports the AOJ’s findings concerning sustained improvement in the Veteran’s service-connected kidney disability. For example, on VA examination on May 6, 2011, the Veteran complained of fatigue. A medical history of chronic renal failure was noted. The Veteran denied experiencing fever, nausea, flank pain, chills, vomiting, back pain, syncope, anorexia, dyspnea, lower abdominal pain, angina, lethargy, edema, or weakness. He also denied experiencing urinary dysuria, hesitancy/difficulty starting a stream, weak/intermittent stream, straining to urinate, dribbling, frequency, nocturia, or urethral discharge. He further denied experiencing “urinary leakage or incontinence.” No history of urinary tract infections, obstructive voiding, or urinary tract stones was reported. The Veteran required dialysis 3 times a week for treatment of his kidney disability. He had no issues with erectile functioning. “He indicates [that] the renal condition precludes him to only sedentary activities.” A history of renal transplant surgery in 2008 also was noted. Physical examination on May 6, 2011, showed blood pressure of 110/70, 112/74, and 118/76, no signs of malaise, a regular heart rate and rhythm, “no evidence of striae on the abdominal wall or distention of superficial veins,” no evidence of ostomy “or tenderness to the abdomen or flank on palpation,” no palpable masses, no evidence of splenomegaly, ascites, or ventral hernia, no liver enlargement or aortic aneurysm, and no palpable bladder. Urinalysis showed no protein (microalbuminuria), sugar, red blood cells, hyaline casts, and granular casts; only “findings of bacteria probably not significant” were noted. The VA examiner stated that the Veteran’s fatigue was due to his anti-rejection medications. The diagnosis was status post kidney transplant with residual scar. A review of the Veteran’s extensive VA outpatient treatment records shows that his kidney transplant repeatedly was stable with good renal function throughout 2011-2012. The Veteran’s VA renal transplant coordinator noted in December 2012 that the Veteran “had a successful transplant and thus successful treatment of his service-connected” chronic kidney disease. The Veteran, without good cause, failed to report for VA examinations scheduled in January and in March 2012. Evidence which was expected to be obtained at these examinations could not be obtained. The Board notes in this regard that the Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). On VA kidney conditions (nephrology) Disability Benefits Questionnaire (DBQ) in October 2014, the Veteran’s complaints included worsening kidney function. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. A history of a kidney transplant in 2008 was noted. The Veteran was required to take continuous medication to treat his kidney disability. He did not require regular dialysis but experienced limitation of exertion due to renal dysfunction. There was no hypertension or heart disease present due to a renal condition. The Veteran’s laboratory results showed a blood urea nitrogen (BUN) of 15mg% and creatinine of 1.13mg%. Physical examination showed blood pressure of 130/78, 130/78, and 130/78, no signs of malaise, no evidence of jugular venous distention or thyroid enlargement, a regular heart rate and rhythm, and abdomen within normal limits. The diagnosis was status-post kidney transplant with hypertension and scar. On VA kidney conditions (nephrology) DBQ in August 2016, the Veteran’s complaints included worsening kidney condition and altered activities of daily living “due to side effects from all the medications.” The Veteran was required to take continuous medication to treat his kidney disability. There was no renal dysfunction present. Laboratory results showed that the Veteran’s creatinine was normal at 1.13mg% and no hyaline casts were seen on urinalysis. Physical examination showed blood pressure of 133/80, 125/75, and 127/76, no signs of malaise, no evidence of jugular venous distention or thyroid enlargement, a regular heart rate and rhythm, and abdomen within normal limits. The diagnosis was status-post kidney transplant. (Continued on the next page)   Having reviewed the record evidence, the Board finds that the symptomatology attributable to the Veteran’s service-connected kidney disability improved on VA examination on May 6, 2011, when the only renal symptom noted was fatigue due to the Veteran taking anti-rejection medications following a successful kidney transplant in 2008. Urinalysis in May 2011 also showed only bacteria which was “probably not significant” according to the VA examiner. The Board also finds that the improvement in the Veteran’s service-connected kidney disability was sustained because his extensive VA outpatient treatment records dated throughout 2011-2012 show that his kidney transplant repeatedly was stable with good renal function. The Veteran’s VA renal transplant coordinator specifically noted in December 2012 that the Veteran “had a successful transplant and thus successful treatment of his service-connected” chronic kidney disease. The Board again notes that the Veteran, without good cause, failed to report for subsequent VA examinations scheduled in January and in March 2012 and evidence which was expected to be obtained at these examinations could not be obtained. The Board next notes that sustained improvement in the Veteran’s service-connected kidney disability was shown on VA examinations in October 2014 and in August 2016. These examinations showed that the Veteran experienced limitation of exertion due to renal dysfunction but no hypertension or heart disease due to a renal condition was present (as noted in October 2014) and no renal dysfunction was present and his laboratory results were within normal limits (as noted in August 2016). The Veteran finally has not identified or submitted any evidence demonstrating that, effective November 1, 2012, he experienced persistent edema and albuminuria, BUN more than 80mg%, creatine more than 8mg%, or markedly decreased kidney or other organ function as is required for a 100 percent rating under DC 7531. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7531 (2017). In summary, the Board finds that the rating reduction from 100 percent to 80 percent effective November 1, 2012, for chronic renal failure with hypertension, status-post kidney transplant with scar, was proper. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel