Citation Nr: 20021829 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-55 754 DATE: March 27, 2020 ORDER Entitlement to an increased rating in excess of 30 percent disabling for service-connected neoplasm of the kidney, status post left nephrectomy is denied. Entitlement to a compensable rating for service-connected bronchoalveolar carcinoma, status post right lower lobectomy is denied. FINDINGS OF FACT 1. Service-connected neoplasm of the kidney, status post left nephrectomy, does not more nearly approximate a definite decrease in kidney function, constant albuminuria with some edema, hypertension, persistent edema and albuminuria with blood urea nitrogen (BUN) at least 40 to 80mg percent, creatinine at least 4 to 8mg percent, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, limitation of exertion, or markedly decreased function of kidney or other organ systems, especially cardiovascular. 2. PFT testing post-bronchodilator showed FEV-1 of 81.2-percent predicted and FEV-1/FVC of 86.7-percent predicted; it was noted that the FEV-1 percent predicted value most accurately reflected the Veteran’s level of disability. CONCLUSIONS OF LAW 1. The criteria for increased rating in excess of 30 percent disabling for service-connected neoplasm of the kidney, status post left nephrectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.115(a), 4.115(b), Diagnostic Code (DC) 7500. 2. The criteria for entitlement to a compensable rating for service-connected bronchoalveolar carcinoma, status post right lower lobectomy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.27, 4.97, DC 6819-6844 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Navy from July 1967 to May 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned Veterans Law Judge in a January 2020 Travel Board hearing. A copy of the hearing transcript has been associated with the record. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two 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 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board finds that staged ratings are not appropriate for the evaluation of the Veteran’s service-connected disabilities in this case. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2019). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay 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. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2019). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an increased rating in excess of 30 percent disabling for service-connected neoplasm of the kidney, status post left nephrectomy The Veteran contends that service-connected neoplasm of the kidney, status post left nephrectomy warrants a rating in excess of 30 percent disabling. The Veteran’s neoplasm of the kidney, status post left nephrectomy is currently rated under Diagnostic Code 7500, removal of a kidney. Diagnostic Code 7500 is assignable for the removal of one kidney and carries with it a minimum rating of 30 percent. According to this Diagnostic Code, residuals of such a removal may be rated as renal dysfunction if there is nephritis, infection or pathology of the other kidney. 38 C.F.R. § 4.115b (2019). Renal dysfunction is evaluated under 38 C.F.R. § 4.115a. Entitlement to a 60 percent disability rating for renal dysfunction under 38 C.F.R. § 4.115a requires constant albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101. For an 80 percent disability rating under Diagnostic Code 7500, a veteran must have persistent edema and albuminuria with BUN 40 to 80mg percent; or, creatinine 4 to 8mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 38 C.F.R. § 4.115a (2019). Under Diagnostic Code 7500, a disability rating of 100 percent is assigned in situations requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg percent; or, creatinine more than 8mg percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a (2019). In a January 2016 VA examination, the Veteran was diagnosed with neoplasm of the kidney. On examination, the Veteran did not have renal dysfunction or urolithiasis. Diagnostic testing showed a normal BUN level at 13, with a creatinine level of 1.04, and an abnormal EGFR of 71. The VA examiner did not find any other pertinent physical findings, complications, conditions, signs or symptoms. The VA examiner opined that the Veteran’s kidney disability impacted his ability to work, where the Veteran reported he was unable to do work that involved strenuous physical activity, such as lifting 15 pounds or more, long standing (30 minutes), or running (more than 50 feet). An August 2017 private disability benefits questionnaire (DBQ), associated with the record in December 2017, showed the Veteran had neoplasm of the kidney with left necrectomy, stage two chronic kidney disease and a history of hematuria. The Veteran’s treatment plan did not include taking medication for the diagnosed conditions. The Veteran did not have renal dysfunction, urolithiasis, hypertension or heart disease, and the Veteran did not require regular dialysis. Diagnostic testing completed in January 2017 showed a BUN level of 11, creatinine level of 1.08 and EFGR of 68. There were no further significant diagnostic test findings or results. Within a January 2020 Travel Board hearing, the Veteran testified that he had residual pain from the initial removal surgery of his left kidney, with muscle spasms, pain in his right kidney, and topical pain of the incisions. He also testified that his kidney disability has affected his energy level, in that he used to do a lot of hiking and cycling which has been affected. The Veteran indicated that he has some issues of incontinence in which he must change absorbent materials once a night, with urinary frequency every two hours, both day and night. VA treatment records dated January 2020 show the Veteran was in for a routine follow-up, in which he reported he continued to exercise regularly by hiking and cycling, and has lost weight intentionally. A preponderance of the evidence is against a finding for higher than a 30 percent rating for the Veteran’s service-connected neoplasm of the kidney, status post left nephrectomy. The Veteran’s January 2016 VA examination and August 2017 private DBQ do not indicate, and the Veteran did not otherwise provide evidence that suggests that his left kidney nephrectomy residuals cause at least constant albuminuria with some edema, a definite decrease in kidney function, hypertension, creatinine 4 to 8mg percent, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, requires regular dialysis, or cause markedly decreased function of kidney or other organ systems, especially cardiovascular. In fact, the Veteran’s most recent August 2017 private DBQ specifically notes no renal dysfunction, and indicates normal BUN, creatinine, and EFGR levels. And while the Veteran testified that he experienced a loss of energy, the August 2017 private DBQ indicated that the Veteran did not have symptoms of lethargy, weakness or limitation of exertion due to renal dysfunction. The Board finds that the Veteran is competent to describe symptoms of reduced energy, but insomuch as the Veteran contends that is loss of energy is etiologically related to his service-connected kidney disability, the Board finds that he is not competent to render such an opinion, as he lacks the medical training and expertise to provide a medical nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). Therefore, the Veteran’s service-connected neoplasm of the kidney, status post left nephrectomy does not more nearly approximate symptomatology contemplated by a rating higher than 30 percent under Diagnostic Code 7500, thus the Veteran’s appeal must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2019). 2. Entitlement to a compensable rating for service-connected bronchoalveolar carcinoma, status post right lower lobectomy For the entire rating period, the service-connected bronchoalveolar carcinoma, status post right lower lobectomy was assigned a noncompensable rating under the criteria found at 38 C.F.R. § 4.97, DC 6819-6844 for malignant neoplasms of the respiratory system with post-surgical residuals. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2019). Diagnostic Code 6819 is for rating neoplasms, malignant, any specified part of the respiratory system exclusive of skin growths. Diagnostic Code 6844 is for rating post-surgical residual lobectomy. Post-surgical residuals of respiratory disability are rated under the General Rating Formula for Restrictive Lung Disease. Under the General Rating Formula for Restrictive Lung Disease, a 10 percent rating is provided where there is Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 66- to 80-percent predicted. A 30 percent rating is provided where there is FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent rating is provided where there is FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is provided where there is FEV-1 less than 40 percent of predicted value, or; the FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6844 (2019). When evaluating based on pulmonary function tests (PFTs), use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96 (d)(5) (2019). Within a January 2016 VA examination report, it was noted that the Veteran’s respiratory disability did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics or outpatient oxygen therapy. Diagnostic testing, which included pulmonary function testing (PFT), showed pre-bronchodilator FEV-1 of 79-percent predicted, FEV-1/FVC of 90.7-percent predicted and DLCO of 102 percent. PFT testing post-bronchodilator showed FEV-1 of 81.2-percent predicted and FEV-1/FVC of 86.7-percent predicted. The VA examiner opined that the FEV-1 percent predicted value most accurately reflected the Veteran’s level of disability. The Veteran reported that his right lung condition after surgery made it impossible for him to do any physically strenuous work. The VA examiner indicated that pulmonary function tests indicated that inhaled bronchodilator made only slight improvement in breathing function, and that lung values were normal, with DLCO within normal limits. Within a January 2020 Travel Board hearing, the Veteran testified that he didn’t have as much energy as he used to due to his bronchoalveolar carcinoma, status post right lower lobectomy. VA treatment records dated January 2020 show the Veteran was in for a routine follow-up, in which he reported he continued to exercise regularly by hiking and cycling. A preponderance of the evidence is against a finding for higher than a noncompensable rating for the Veteran’s service-connected bronchoalveolar carcinoma, status post right lower lobectomy. The VA examination report and the Veteran did not otherwise provide evidence establishing testing that demonstrates FEV-1 of 71- to 80-percent predicted, or; the ratio of FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted, required for a 10 percent disability rating. Rather, the January 2016 VA examination showed pre-bronchodilator FEV-1 of 79-percent predicted, and FEV-1/FVC of 90.7-percent predicted; with post-bronchodilator FEV-1 of 81.2-percent predicted, and FEV-1/FVC of 86.7-percent predicted. Therefore, the Veteran’s service-connected bronchoalveolar carcinoma, status post right lower lobectomy, does not more nearly approximate symptomatology contemplated by 10 percent disability rating under Diagnostic Code 6844, thus the Veteran’s appeal must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2019). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.