Citation Nr: 20043294 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 19-37 540 DATE: June 26, 2020 ORDER Entitlement to a rating in excess of 60 percent for service-connected kidney disease with hypertension is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 18, 2009, is remanded. FINDING OF FACT The Veteran’s kidney disease with hypertension manifests as constant albuminuria with some edema. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 60 percent for service-connected kidney disease with hypertension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.14, 4.115A, 4.115B, Diagnostic Code 7541. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from September 1967 to September 1969. For his meritorious service, among other awards, the Veteran was awarded the Vietnam Service and Campaign Medals. This appeal comes to the Board of Veterans’ Appeals (Board) from June 2015 and August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 60 percent for service-connected kidney disease with hypertension. Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), 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 single 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. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). When entitlement to compensation has already been established and an increased rating is at issue, 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. Hart v. Mansfield, 21 Vet. App. 505, 509; see also 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400(o)(2). 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. (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). The Veteran contends he is entitled to a rating in excess of 60 percent for his service-connected kidney disease with hypertension. His service-connected kidney disease with hypertension is rated at 60 percent under 38 C.F.R. § 4.115B, Diagnostic Code 7541. Diagnostic Code 7541 states that the disability is to be rated as renal dysfunction. Under the criteria for rating renal dysfunction, 38 C.F.R. § 4.115A, 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. 38 C.F.R. § 4.115A. 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. Id. 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. Id. In July 2018, the Veteran was afforded a VA examination for kidney conditions. The Veteran was diagnosed with chronic renal disease. A laboratory test showed that the Veteran’s BUN was 23 and creatinine was 1.43. The VA examiner noted that the Veteran had renal dysfunction, but he did not have regular dialysis. The Veteran had constant proteinuria (albuminuria), but he did not have edema, anorexia, weight loss, generalized poor healthy, lethargy, weakness, limitation of exertion, or markedly decreased function of other organ systems. The Board has concluded that after a thorough review of all medical records and lay statements, a rating in excess of 60 percent is not warranted for the Veteran’s service-connected kidney disease with hypertension. The July 2018 VA examination showed that the Veteran’s BUN was 23 and creatinine was 1.43. Also, the Veteran did not need regular dialysis. He did not have poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Board has considered the Veteran’s lay statements in support of his claim for an increased rating for his kidney disease with hypertension. However, the Board concludes that the medical findings are of greater probative value than the Veteran’s allegations regarding the severity of his condition. The nature and extent of the Veteran’s disability have been addressed during the appeal period and the medical findings directly address the criteria under which this disability is evaluated. Accordingly, the Board finds that a rating in excess of 60 percent is not warranted. As a final note, the Board acknowledges that it is remanding a claim for an earlier effective date for the grant of a TDIU. The Veteran’s claim for an increased rating for his service-connected kidney condition deals with a rating period for which the Veteran is already in receipt of a TDIU or a 100 percent schedular rating, and the Veteran has made no contention (and the evidence does not reflect) that he is unable to secure or follow a substantially gainful occupation on account of his kidney disability alone. Thus, the Board may reach a final decision as to this claim without affecting the claim for an earlier effective date for a TDIU. REASONS FOR REMAND 1. Entitlement to a TDIU prior to September 18, 2009, is remanded. Before addressing the reasons why a remand is warranted, a brief review of the procedural history here is instructive. The Board had previously granted a TDIU in an April 2015 decision. The Board did not assign an effective date with its grant, so in a June 2015 rating decision effectuating the Board’s grant, the RO assigned the effective date of September 18, 2009. Since that time, the Veteran has repeatedly expressed his disagreement with the effective date assigned. However, at no time did he do so on a form prescribed by the secretary as required given the date of the rating decision in question. Nevertheless, during the pendency of this appeal, the Veteran has also been seeking an increased rating for his service-connected diabetic retinopathy. The Veteran has perfected that appeal, and the appeal period for that disability begins in 2004. Importantly, the Veteran also contends that he is unemployable at least in part due to his eye disability. Accordingly, despite the fact that the Veteran did not properly appeal the effective date granted by the RO in its June 2015 rating decision, such a claim remains active as the Veteran’s claim for an increased rating is not yet resolved. Accordingly, the Board finds that it has jurisdiction over the Veteran’s claim for an earlier effective date for the grant of TDIU benefits. For the appeal period prior to September 18, 2009, the Veteran is service-connected for the following disabilities: (1) coronary artery disease associated with type II diabetes mellitus with erectile dysfunction rated at 10 percent; (2) type II diabetes mellitus with erectile dysfunction rated at 20 percent; (3) bilateral hearing loss rated at 10 percent; (4) tinnitus rated at 10 percent; (5) peripheral neuropathy of the upper left extremity rated at 10 percent; (6) peripheral neuropathy of the upper right extremity rated at 10 percent; (7) peripheral neuropathy of the lower right extremity rated at 10 percent; (8) peripheral neuropathy of the lower left extremity rated at 10 percent; and (9) diabetic retinopathy of the right eye rated at 0 percent. The Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to September 18, 2009. As such, the Board will consider whether referral to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. There is conflicting information regarding the Veteran’s employment status prior to September 18, 2009, and the effect that his service-connected disabilities had on him at that time. In a July 2007 VA examination for hypertension, the Veteran reported that he was still employed as a truck driver. However, in January 2013, the Veteran submitted a VA From 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. The Veteran reported that his service-connected bilateral hearing loss, tinnitus, eyes, and diabetes mellitus prevented him from securing or following any substantially gainful occupation. The Veteran stated that he became too disabled to work in 2008. The Board, at this point, makes no finding, positive or negative, as to whether a TDIU prior to September 2009 is warranted. Indeed, the mere fact that the Veteran’s claim for an increased rating for his eye disability remains active means that this claim is inextricably intertwined with that increased rating claim. The Board shall refer the claim to the Director for extraschedular consideration not as an indication that the Board will later grant such a claim, but instead to preserve judicial economy and ensure that any appropriate decision may be made with respect to the increased rating claim at the time it is returned to the Board. Given the discrepancies noted by the Board regarding the Veteran’s employment, the Veteran must also be provided with a new formal application for a TDIU. While completion of this document is not explicitly required, the information contained therein is all necessary for the Board and VA to make an informed decision. Of greatest importance to the Board is knowing the Veteran’s dates of employment and when he left his previous position. The Veteran is specifically instructed that a failure to furnish this information may result in a denial of his claim or in a decision being based on an inaccurate factual premise. The matters are REMANDED for the following action: 1. Provide the Veteran with a new VA Form 21-8940. Allow sufficient time for the Veteran to complete and return the form. 2. Refer the issue of TDIU to the Director of Compensation Service for extraschedular consideration. Then, readjudicate the issue. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, she and her attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if in order, for further review. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.