Citation Nr: 20042734 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 17-08 776 DATE: June 24, 2020 ORDER An initial rating of 80 percent, and no higher, for chronic renal insufficiency, stage III, with hypertension is granted. FINDING OF FACT For the entire initial rating period, the Veteran’s service-connected chronic renal insufficiency, stage III, with hypertension has been manifested, at worst, by generalized poor health characterized by lethargy, weakness, and limitation of exertion without required dialysis or precluded by more than sedentary activity due to symptomatology. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 80 percent, and no higher, for chronic renal insufficiency, stage III, with hypertension have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.115A, 4.115B, Diagnostic Code 7530. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1972 to October 1973. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to an initial rating in excess of 60 percent for chronic renal insufficiency, stage III, with hypertension Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. 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 Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in February 2015. Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The Veteran filed his initial claim requesting service connection for kidney failure in July 2015. In the June 2016 VA rating decision, service connection for chronic renal insufficiency, stage III, to include hypertension, was granted under 38 U.S.C. § 1151. The Veteran was assigned a 60 percent disability rating for definite decrease in kidney function effective from February 26, 2015 (the date of the surgical procedure that is the proximate cause of the disability). See 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7530. The Board considers whether an initial rating in excess of 60 percent for chronic renal insufficiency, stage III, with hypertension is warranted at any time since the date of claim on February 26, 2015. Diagnostic Code 7530 provides that chronic renal disease requiring regular dialysis is to be rated as renal dysfunction. 38 C.F.R. § 4.115B. Renal dysfunction is warranted a 60 percent disability rating for constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. 38 C.F.R. § 4.115A. The next-higher rating of 80 percent is warranted for persistent edema and albuminuria with blood urea nitrogen (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. Id. A 100 percent disability rating, the maximum available, is warranted for requiring regular dialysis; or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, BUN more than 80 mg percent, creatinine more than 8 mg percent, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. At the outset, the Board notes that Diagnostic Code 7101 provides a 60 percent disability rating, the maximum available, for hypertension. 38 C.F.R. § 4.104. As a result, consideration for an initial rating in excess of 60 percent for hypertension is not warranted in this case. The most probative evidence of record shows that during the appeal period, the Veteran’s service-connected chronic renal insufficiency has been manifested, at worst, by generalized poor health characterized by lethargy, weakness, and limitation of exertion, thus the 80 percent criteria for renal dysfunction have been satisfied, and no higher. Specifically, review of VA treatment records documents the Veteran’s generalized weakness in March 2015 and April 2016 and appearance as lethargic in March 2015. In a December 2016 VA Form 21 (Report of General Information), the Veteran reported he has been sore in the kidney area and has had difficulty breathing, to include shortness of breath, ever since his surgery, as well as bloated in the stomach and fees tired all the time. At the October 2019 Board hearing, the Veteran reported shortness of breath and fatigue all the time. In an October 2019 VA Form 21-4138 (Statement in Support of Claim), the Veteran reported that since his surgery in 2015 his kidney condition has continually worsened and he has difficulties bathing and caring for himself, does not have the energy to complete simple tasks around the home, and experiences elevated blood pressure. Moreover, the March 2020 VA examiner noted the Veteran’s current signs or symptoms due to renal dysfunction included lethargy, weakness, and limitation of exertion. In light of such evidence and given the Veteran’s lay assertions of symptomatology, the Board resolves reasonable doubt in the Veteran’s favor and finds that his service-connected chronic renal insufficiency has been manifested, at worst, by generalized poor health due to such symptomatology as discussed above. Moreover, the record is silent, as is the Veteran, for any indication that this service-connected disability has been manifested by requiring regular dialysis or precluding more than sedentary activity at any time during the appeal period to warrant the next-higher and maximum rating of 100 percent. Specifically, while the Board acknowledges that the April 2016 VA examiner noted that “[s]ince [the transurethral resection of the prostate (TURP) surgery in February 2015], [the Veteran] has fully recovered from acute renal failure, which required dialysis during March of 2015.” The March 2020 VA examiner also noted the “Veteran developed acute renal failure due to anti-inflammatory medication during TURP in 2015 [and] [h]e required dialysis until March 2015 and then his renal function improved with no further dialysis required.” Nevertheless, review of VA treatment records during March 2015 shows the Veteran only underwent two rounds of dialysis, thus not showing a frequency of regular treatment, and dialysis has not been required ever since as noted by both VA examiners. VA treatment records during March 2015 also documents the Veteran’s activity level included walking occasionally and frequently. Moreover, the Veteran reported at the March 2020 VA examination that he is able to do his own activities of daily living, some light housework, his own short errands, and take care of his three dogs. The Board considers the Veteran’s reported history of symptomatology related to the service-connected chronic renal insufficiency. He is competent to report such symptoms and observations such as what he reported at his VA examinations, in lay statements, and at the Board hearing, because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for an initial rating in excess of 80 percent for his chronic renal insufficiency have been met at any time during the appeal period. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reported worsened symptomatology. The Board has considered the possibility of staged ratings and finds that the proper rating of 80 percent is in effect for the entire initial rating period on appeal. Accordingly, staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.