Citation Nr: 18118317 Decision Date: 07/13/18 Archive Date: 07/12/18 DOCKET NO. 13-22 013A DATE: July 13, 2018 ORDER Entitlement to a 30 percent evaluation for bilateral chronic autosomal polycystic kidney disease (PCKD) is granted, effective from October 1, 2006 to October 15, 2014. Entitlement to an evaluation in excess of 40 percent bilateral PCKD, subsequent to October 16, 2014, is denied. REMANDED Entitlement to service connection for a low back disability, to include as secondary to polycystic diseases of the liver and kidneys, is remanded. Entitlement to service connection for an abdominal or gastrointestinal disability, to include as secondary to polycystic diseases of the liver and kidneys, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. From October 1, 2006 to October 15, 2014, the evidence shows that the Veteran’s service-connected PCKD was manifested by renal dysfunction with albumin and red blood cells, and that the Veteran required continuous medication to control his hypertension. 2. From October 16, 2014, the Veteran’s PCKD required phlebotomy, but the evidence did not demonstrate the Veteran required myelosuppressant therapy. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for an initial 30 percent rating, but no higher, for bilateral chronic autosomal polycystic kidney disease has been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7533 (2017). 2. The criteria for a disability rating in excess of 40 percent for bilateral chronic autosomal polycystic kidney disease, from October 16, 2014, has not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7533-7704 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from September 1986 to September 2006. In a July 2017 rating decision, the Regional Office determined there was a clear and unmistakable error (CUE) in the decision to include the evaluation for hypertension with bilateral chronic polycystic kidney disease. The rating decision assigned a 40 percent evaluation for PCKD effective October 16, 2014, and continued the noncompensable rating prior to this date. Accordingly, as the CUE claim was pending when the increased rating claim was filed, the Board has considered the entire period dating back to October 1, 2006. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Entitlement to a compensable evaluation prior to October 16, 2014, for bilateral PCKD and an evaluation in excess of 40 percent thereafter. The Veteran’s PCKD has been rated as noncompensable prior to October 16, 2014, under 38 C.F.R. § 4.115a, Diagnostic Code (DC) 7533, and 40 percent disabling thereafter under 38 C.F.R. § 4.117, DC 7704. In this case, DC 7533 directs that cystic disease of the kidneys are to be rated as renal dysfunction. Under the criteria for rating renal dysfunction, a noncompensable rating is warranted when there is albumin and casts with a history of acute nephritis, or hypertension is noncompensable under Diagnostic Code 7101. 38 C.F.R § 4.115a. A 30 percent rating is warranted for albumin constant or recurring 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 warranted where 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 80 mg percent, or, creatinine 4 to 8 mg percent, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent evaluation is assigned for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, or, BUN more than 80 mg percent, or, creatinine more than 8 mg percent, or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. (Albuminuria is also known as proteinuria and is the presence of an excess of serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995).) Under Diagnostic Code 7704 (“Polycythemia vera”), a 10 percent rating is warranted when the condition is stable, with or without continuous medication. A 40 percent rating is warranted when phlebotomy is required. A 100 percent rating is warranted during periods of treatment with myelosuppressants and for three months following cessation of myelosupppressant therapy. 38 C.F.R. § 4.118, Diagnostic Code 7704. The Board finds that prior to October 16, 2014, the Veteran’s PCKD is properly evaluated under the criteria of Diagnostic Code 7533, which specifically contemplates cystic diseases of the kidneys. Diagnostic Code 7101 provides ratings for hypertensive vascular disease. In order to obtain a 10 percent rating under Diagnostic Code 7101, the evidence must show. A 10 percent rating is also the minimum evaluation for an individual with. Furthermore, a 40 percent rating is warranted where the evidence shows diastolic blood pressure readings that are predominantly 120 or higher. See 38 C.F.R. § 4.104. Turning to the evidence, the Veteran was afforded a VA examination in April 2006. The Veteran was diagnosed with bilateral chronic “autosomal” polycystic kidney disease. The Veteran reported constant bilateral flank and low abdominal discomfort. The examiner noted the record demonstrated well documented kidney pathology, which was of a potentially severe nature, and noted cysts as large as 9.2 centimeters. Blood pressure readings were recorded as 114/82, 116/86, and 118/88. In February 2007, the Veteran’s treating doctor, Dr. D.M., submitted a letter stating the Veteran’s PCKD resulted in an unusually large kidney size and that the Veteran’s kidneys were functioning at 79 percent of their original capacity. Dr. D.M. reported the Veteran experienced chronic back and abdominal pain as a result of his PCKD. The doctor also noted the Veteran was on two different agents for his blood pressure control and had a reading of 128/90 in December 2006. Computerized tomography (CT) scans of the kidneys dated from January 2006 to June 2009 showed innumerous hyperdense cysts in the kidneys. Private treatment records from November 2009 and VA medical center (VAMC) records from July 2010 and March 2013 show the Veteran complained of easy fatiguability, pain upon exertion, and occasional right upper quadrant abdominal pain. In February 2010, Dr. D.M. provided a follow-up letter that indicated the Veteran was still in Stage 2 of Chronic Kidney Disease and his medications have been keeping his blood pressure controlled. The Veteran was afforded a VA examination in June 2010. The Veteran reported daily pain in the upper right quadrant area and left lateral aspect of the trunk and flank area. The examiner diagnosed the Veteran with bilateral polycystic kidney disease with normal renal function. VAMC treatment records show the Veteran maintained normal renal function with mildly elevated microalbuminuria from August 2011 through October 2016. Based on the foregoing, the Board has determined the Veteran’s symptomatology most closely approximates the 30 percent level of disability under 38 C.F.R. § 4.115a, Diagnostic Code 7533. As previously noted, a means of obtaining a 30 percent rating is with hypertension at least 10 percent disabling under Diagnostic Code 7101. See 38 C.F.R. § 4.115a, DC 7101 (affording a 10 percent disability rating for hypertension when diastolic blood pressure readings are predominantly 100 or higher, or systolic pressure readings are predominantly 160 or higher; or has a history of diastolic pressure predominantly 100 or higher and requires continuous medication for control). The evidence demonstrates that the Veteran’s hypertension requires continuous medication to remain under control. In addition, there have been numerous instances throughout the record where the Veteran’s diastolic blood pressure has varied between readings that would support a noncompensable rating for hypertension, and readings that may support a 10 percent rating for hypertension. For instance, in August 2006, the Veteran had a blood pressure of 137/100 with sudden swelling of his ankles, and in December 2006, the Veteran’s blood pressure was 126/100. Upon VA examination in June 2010, his blood pressure was recorded as 133/97, 136/96, and 129/95. As such, the Board considers the Veteran’s hypertension, while not definitively supporting a 10 percent disability rating, is on the borderline given the requirements of DC 7101. The Board note that in addition to the blood pressure readings noted above, the Veteran has experienced additional symptoms not considered by the diagnostic code such as occasional flank and trunk pain, restrictions on range of motion, and kidney stones in relation to his PCKD. Thus, although a disability rating of 30 percent for renal dysfunction requires hypertension rated at least 10 percent disabling under DC 7101, the Board finds that when considering the Veteran’s hypertension in the context of his whole disability picture, his PCKD is most closely approximated by the criteria for a 30 percent disability rating. However throughout the period at issue, there is no indication in the evidence of constant albuminuria with some edema, definite decrease in kidney function, or hypertension with a diastolic pressure predominantly at 120 or more, which would warrant a 60 percent rating for renal dysfunction. While the Veteran’s treating doctor has stated in February 2007 and 2010 that there was a decrease in kidney functioning, the consistently normal kidney testing through the VAMC does not support a “definite” decrease in kidney functioning. Further, there is also no indication of any other persistent symptoms or lab results which would warrant any higher rating. The Board notes while the Veteran has complained of easy fatiguability and kidney pain which was worse with slight exertion, the record does not support the Veteran has generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion which would warrant an 80 percent rating for renal dysfunction. Despite pain related to his PCKD, the Veteran has appeared to maintain a fairly active lifestyle. For instance, in September 2008, the Veteran tore his meniscus while playing football. More recently in March 2015, the Veteran stated he exercises by performing regular walking and yard work. Accordingly prior to October 16, 2014, the Board finds that an initial rating of 30 percent, and no higher, is warranted for the Veteran’s polycystic kidney disease due to his borderline compensable hypertension, microalbuminuria, and pain. Subsequent to October 16, 2014, the Board finds the evidence does not demonstrate the Veteran’s PCKD warrants a higher rating under DC 7533 or DC 7704 or any other applicable diagnostic code. In order to establish the next higher 100 percent, rating under DC 7704, the Veteran would have to be receiving period of treatment with myelosuppressant therapy, which the Veteran has not undergone. Additionally, as discussed above, the record also does not demonstrate the criteria for a higher rating under DC 7533. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the-doubt doctrine is not applicable to that extent. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Although the Board regrets the delay, the Board finds that additional development of the claim is warranted. Entitlement to service connection for a low back disability and for an abdominal or gastrointestinal disability, to include as secondary to polycystic diseases of the liver and kidneys, is remanded. In November 2015, the Board remanded the Veteran’s claims for service connection for an abdominal or gastrointestinal disability and for a low back disability, to include as secondary to polycystic diseases of the liver and kidneys, in order to obtain VA examinations. A review of the claims file indicates the AOJ obtained VA examinations in March 2017 for the Veteran’s abdominal condition and low back condition. Although the examiner rendered an opinion as to whether the Veteran’s conditions were directly related to service or caused by a service-connected condition, the examiner did not opine as to whether a service-connected condition aggravated the abdominal or back conditions. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (Where an examiner finds that a service-connected disability did not cause a claimed disorder, it is not clear that aggravation has been addressed.). Accordingly, remand is required for an additional opinion. The Board finds that the claim for a TDIU is inexplicably intertwined with the claims for service connection for a low back condition and for an abdominal disability. As such, all issues must be remanded and adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). The matter is REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his lower back condition. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The Veteran need only attend the examination if the examiner deems it necessary to render an opinion. The examiner is requested to provide the following information: (a) The examiner should state whether it is at least as likely as not that the Veteran’s low back condition is caused by or is permanently aggravated by his service-connected polycystic kidney disease. In this regard, the examiner should note that a rationale is required for both causation and aggravation. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 2. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his abdominal condition. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The Veteran need only attend the examination if the examiner deems it necessary to render an opinion. The examiner is requested to provide the following information: (a) The examiner should state whether it is at least as likely as not that the Veteran’s abdominal condition is caused by or is permanently aggravated by his service-connected polycystic kidney disease. In this regard, the examiner should note that a rationale is required for both causation and aggravation. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel