Citation Nr: 20026080 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 18-39 809 DATE: April 15, 2020 ORDER Entitlement to a rating in excess of 60 percent for focal segmental glomerulosclerosis (hereinafter chronic renal disease) from December 17, 2010 until July 26, 2016 is denied. Entitlement to a rating in excess of 80 percent for chronic renal disease from July 26, 2016 until June 30, 2017 is denied. FINDINGS OF FACT 1. From December 17, 2010 until July 26, 2016, the Veteran’s chronic renal disease manifested by objective findings of decreased kidney function. Persistent albuminuria and edema with BUN 40 to 80 mg% or creatinine 4 to 8 mg% were not present and there was no indication of generalized poor health. 2. From July 26, 2016 until June 30, 2017, the Veteran’s chronic renal disease manifested by persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg%. The Veteran’s chronic renal disease did not manifest by requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for chronic renal disease from December 17, 2010 until July 26, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.6, 4.115a, 4.115b, Diagnostic Code 7530. 2. The criteria for a rating in excess of 80 percent for chronic renal disease from July 26, 2016 until June 30, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.6, 4.115a, 4.115b, Diagnostic Code 7530. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Army from July 1968 until June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision from the Department of Veteran’s Affairs (VA) Regional Office (RO). The Veteran is currently rated at 100 percent for his chronic renal disease. Increased Rating The Veteran contends the severity of his condition should entitle him to a disability rating in excess of 60 percent from December 17, 2010 and greater than 80 percent from July 26, 2016. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods of impairment are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this regard, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. 1. Entitlement to a rating in excess of 60 percent for chronic renal disease from December 17, 2010 until July 26, 2016. 2. Entitlement to a rating in excess of 80 percent for chronic renal disease from July 26, 2016 until June 30, 2017 The Veteran’s service-connected chronic renal disease is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7530. Diagnostic Code 7530 states that chronic renal disease requiring regular dialysis is rated as renal dysfunction. 38 C.F.R. § 4.115b. Under 38 C.F.R. § 4.115a, renal dysfunction with constant albuminuria with some edema or definite decrease in kidney function or hypertension at least 40 percent disabling under Diagnostic Code 7101, warrants a 60 percent rating; with persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating; and requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria or BUN more than 80 mg% or creatinine more than 8 mg% or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. 38 C.F.R. § 4.115b. The Veteran was diagnosed with focal segmental glomerulosclerosis as the cause of his renal insufficiency in 1994. See February 2015 VA Examination. Service connection was granted for a chronic kidney condition, effective December 17, 2010, the date of the claim. Around that time, the Veteran’s creatinine levels tested at 2.3 mg% and a very slow deterioration of renal function was noted over the last several years. See November 2009 C.D.H Physician Letter. Additional testing in May 2009 showed BUN at 25 mg%, creatinine at 2.2 mg%, and albumin at 4.1 mg%. See May 2009 Adirondack Medical Associates, LLC Physician Note. A February 2015 VA Examination revealed renal dysfunction without regular dialysis but with persistent proteinuria (albuminuria). At that time, the Veteran was not noted to have hypertension or a heart disease due to renal dysfunction or caused by any kidney condition. Diagnostic testing showed BUN at 39 mg% and creatinine at 2.5 mg%. With the above criteria in mind, the record on appeal is negative for persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% until July 26, 2016. See July 2016 Capital District Renal Physicians Clinical Summary. Test results dated July 26, 2016 exhibited stage 3 chronic kidney disease with BUN measuring at 43 mg% and creatinine at 2.62 mg%. At that time, it was opined that the Veteran will likely require dialysis at a point soon in the future. See July 2016 Capital District Renal Physicians Physician Note. Therefore, the Veteran’s disability picture more nearly approximates a rating of 60% from December 17, 2010 until July 26, 2016 with objective findings of decreased kidney function. Furthermore, the Veteran’s disability picture more nearly approximates a rating of 80% from July 26, 2016 until June 30, 2017 by showing persistent edema and albuminuria with BUN at 43 mg%. In June 2017, the Veteran suffered a heart attack and filed a claim received by the VA on June 30, 2017. It was opined that the Veteran’s kidney disease is a risk factor contributing to the development of coronary artery disease. See January 2018 Medicor Cardiology, P.A. Physician Note. An August 2017 VA Examination also opined that the Veteran’s hypertension is at least as likely as not related to the service-connected focal segmental glomerulosclerosis. Taken as a whole, the Veteran’s disability picture more nearly approximates a rating of 100% after June 30, 2017 because the evidence shows a markedly decreased function of kidney or other organ systems, especially cardiovascular. The Board also notes that while treatment records document the Veteran’s complaints and treatment for renal disease, nothing in these treatment records show his adverse symptomatology to be worse than what was reported at the above VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Lastly, the Board finds that while the Veteran is competent and credible to report on his observable symptoms he is not competent to diagnose persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% because these are complex medical questions and he does not have the required medical training. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). The above does not suggest that the Veteran did not have problems with the condition, the only question is the degree of the problem at certain points. Therefore, the Board finds the preponderance of the evidence to be against a finding that the Veteran’s chronic renal disease manifested by at least persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion from December 17, 2010 until June 26, 2016. Accordingly, the Board finds that a rating in excess of 60 percent for chronic renal disease is not warranted under Diagnostic Code 7530 from December 17, 2010 until June 26, 2016. See 38 C.F.R. § 4.115a, 4.115b. The Board also finds the preponderance of the evidence to be against a finding that the Veteran’s chronic renal disease manifested by requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems from June 26, 2016 until July 30, 2017. Accordingly, the Board finds that a rating in excess of 80 percent for chronic renal disease is not warranted under Diagnostic Code 7530 from June 26, 2016 until July 30, 2017. See 38 C.F.R. §§ 4.115a, 4.115b. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, Associate 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.