Citation Nr: 20072835 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 18-45 067 DATE: November 12, 2020 ORDER Entitlement to an initial rating of 30 percent, but no higher for chronic renal failure prior to May 1, 2017 is granted. FINDING OF FACT For the period on appeal prior to May 1, 2017, the Veteran had transient edema in relation to his chronic renal failure. CONCLUSION OF LAW The criteria for an initial increased rating of 30 percent, but no higher, for chronic renal failure, rated as renal dysfunction, prior to May 1, 2017 have been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7535. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1966 to May 1969 and from August 1969 to January1973, including in the Republic of Vietnam. In a July 2018 rating decision, the AOJ assigned, in pertinent part, a higher initial 60 percent rating effective May 1, 2017, for the Veteran’s service-connected chronic renal failure. Following this rating decision, in statements on his September 2018 substantive appeal (VA Form 9), the Veteran limited his appeal to the claim listed above. In July 2019, the Board denied the claim for an initial compensable rating for the period prior to May 1, 2017. The Veteran appealed the July 2019 Board decision to Court of Appeals for Veterans Claims (CAVC) and pursuant to a Joint Motion for Partial Remand (JMR) and CAVC Order, the claim for an increased rating was vacated and remanded for action consistent with the JMR. Entitlement to an initial compensable rating for chronic renal failure Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). VA shall consider all information, lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s chronic renal failure is rated under Diagnostic Code 7535 which is to be rated as renal dysfunction under 38 C.F.R. § 4.115a. A noncompensable rating is warranted when there is albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. 38 C.F.R. § 4.115a. Renal dysfunction warrants a 30 percent evaluation 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. Id. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. Diagnostic Code 7101 provides that hypertension is 40 percent disabling when diastolic pressure is 120 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. An 80 percent rating under Diagnostic Code 7541 is warranted 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 warranted where regular dialysis is required, or more than sedentary activity is precluded 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. The record evidence shows that the Veteran’s service-connected chronic renal failure was manifested by transient edema for the period prior to May 1, 2017. Private outpatient treatment in December 2006, laboratory testing showed that the Veteran’s blood urea nitrogen (BUN) was 12 and his creatinine was 1.6 (which was the same level it had been in August 2006, according to the Veteran’s private clinician). The private clinician stated that the Veteran’s stage III chronic kidney disease essentially was stable. In October 2006, it was noted that, following an episode of acute renal failure which was treated with a single treatment of dialysis, the Veteran had recovered his renal function. It also was noted that his baseline creatinine was 1.6. In June 2007, laboratory results showed that the Veteran’s BUN was 9 and his creatinine was 1.3. The private clinician again stated that the Veteran’s chronic kidney disease was stage 2-3 and stable. In December 2007, laboratory results showed that the Veteran’s BUN was 8 and his creatinine was 1.4. The private clinician stated that the Veteran’s chronic kidney disease was stable overall although his creatinine level “was slightly up in the past around 1.6.” Following VA diabetes mellitus examination in February 2010, the diagnoses included two episodes of acute renal failure in 2004 and in 2006 which had resolved with treatment and resulted in no residuals and no current complaints. On VA kidney conditions (nephrology) Disability Benefits Questionnaire (DBQ) in April 2016, the Veteran reported that his kidneys had failed in January 2004 due to lithium toxicity. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. This examiner stated that the Veteran experienced renal dysfunction but did not require regular dialysis or have any signs or symptoms due to renal dysfunction. This examiner also stated that the Veteran did not experience any hypertension and/or heart disease due to renal dysfunction caused by any kidney condition. The Veteran’s most recent laboratory test results in June 2012 showed a BUN of 10, creatinine of 1.5, and no red blood cells or albumin in his urine. The diagnosis was glomerulonephritis. A December 2007 private treatment record from Dallas Nephrology documents the Veteran had +1 pitting edema bilaterally. A review of the Veteran’s VA medical records reveals several reports of unilateral or bilateral lower extremity edema ranging from trace to 2+ during the appellate period. See e.g. VA treatment records dated from 2007 through 2016. Although, the Veteran denied edema at times and there were times during this period were edema was not found on examination, VA treatment records consistently noted edema in the problem list. In addition, during his May 2017 Kidney Conditions VA examination, the Veteran reported ongoing edema since his renal failure and lithium toxicity in January 2004. The examiner also observed and noted slight, persistent edema as a symptom of renal dysfunction. Thus, the record evidence shows that, prior to May 1, 2017, his service-connected chronic renal failure was manifested by transient edema due to renal dysfunction and warrants a 30 percent rating. The Board acknowledges that the Veteran has been treated for his service-connected chronic renal failure by VA and private treating clinicians. However, the record evidence shows that the Veteran’s BUN and creatinine levels are well below what is required for a compensable disability rating and do not rise to the level of the next higher 60 percent rating under DC 7535. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7535. Laboratory testing performed in June 2012 also specifically found no evidence of red blood cells or albumin in the Veteran’s urine as is required for a minimum compensable 30 percent rating for renal dysfunction under DC 7535. Id. The Board finds it highly significant that the Veteran’s private treating nephrologist repeatedly found that his chronic kidney disease was stable and his laboratory results essentially were within normal limits repeatedly as well during the appeal period. The April 2016 VA examiner specifically found that there were no signs or symptoms of renal dysfunction present and the Veteran did not experience any hypertension or heart disease due to renal dysfunction caused by any kidney condition. In any event, there is no medical evidence that the Veteran’s hypertension would warrant a 40 percent rating. For reference regarding Diagnostic Code 7101 for hypertension, hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. 38 C.F.R. § 4.104. Thus, a rating for renal dysfunction over 30 percent is not warranted. The findings reflect that, prior to May 1, 2017, the Veteran did not experience disability in excess of 30 percent due to his service-connected chronic renal failure due to renal dysfunction. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating in excess of 30 percent prior to May 1, 2017, for his service-connected chronic renal failure. Accordingly, the Board finds that the criteria for an initial rating of 30 percent, but not higher, prior to May 1, 2017, for chronic renal failure have been met. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.