Citation Nr: 21071112 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 13-32 239 DATE: November 29, 2021 ORDER Entitlement to ratings for renal failure with hypertension (HTN) in excess of 60 percent prior to November 7, 2017 and in excess of 80 percent from that date is denied. FINDINGS OF FACT 1. Prior to November 7, 2017, the Veteran's renal failure with HTN was manifested by a definite decrease in kidney function, but not by 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. 2. From November 7, 2017, the Veteran's renal failure with HTN has not required regular dialysis or been shown to have been manifested by 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. CONCLUSION OF LAW Ratings for renal failure with HTN in excess of 60 percent prior to November 7, 2017 and in excess of 80 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.115A, 4.115B, Diagnostic Code (Code) 7541. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from August 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 Department of Veterans Affairs (VA) rating decision (that granted service connection for renal failure with hypertension, rated 0 percent, effective November 15, 2006). In January 2015, a videoconference hearing was held before the undersigned; a transcript is in the record. In June 2015, the matter was remanded for development. An October 2015 rating decision recharacterized the disability as renal disease with HTN and increased the rating to 60 percent, effective August 27, 2015. In October 2017 the matter was again remanded for development. A January 2018 rating decision increased the rating further to 80 percent, effective November 7, 2017. A May 2019 rating decision assigned a 60 percent rating for the disability from July 17, 2006. In April 2021, this matter was remanded again for additional development. 1., 2. Entitlement to a rating in excess of 60 percent for renal failure with HTN, prior to November 7, 2017, and in excess of 80 percent from that date is denied. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38C.F.R. §4.7. After careful consideration of the evidence, any reasonable doubt regarding degree of disability remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran continues to seek higher disability ratings for his service-connected renal failure with HTN, which is currently rated 60 percent throughout prior to November 7, 2017, and 80 percent from that date under Code 7541, Ratings of the genitourinary system, Renal involvement in diabetes mellitus. 38 C.F.R. § 4.115b. Diagnostic Code7541 instructs to rate diabetic nephropathy as renal dysfunction. Under the criteria for rating renal dysfunction, a 60 percent rating is assigned for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assigned 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 assigned when requiring regular dialysis; or, precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, with markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115A. Turning to the evidence of record, a September 2006 VA treatment record shows creatinine was 2.0 mg/dL. An October 2006 private treatment record from Carolina's Center for Diabetes and Endocrinology notes diagnoses of diabetes mellitus, hypertension, and chronic renal insufficiency, and that the hypertension was treated with medication. The Veteran denied experiencing headaches, chest pain, palpitations, dyspnea with exertion, orthopnea, PND, peripheral edema, visual symptoms, neurologic problems, syncope, or side effects from treatment. A December 2006 VA examination found creatinine was 2.0 mg/dl and BUN was 19 mg/dl. A June 2007 private treatment record from Urgent Medical Care Union shows creatinine was 1.8 mg/dl (normal limits were 0.40 - 1.5 mg/dL). A July 2007 private treatment record from Palmetto Hematology Oncology notes treatment for diabetes mellitus and hypertension. Lab studies found creatinine was 1.8 mg/dl and BUN was 18 mg/dl. A July 2007 private treatment record from Foothills Nephrology notes mild renal insufficiency with creatinine of 1.8 mg/dl and BUN of 18 mg/dl. The examiner also noted diagnoses of diabetes mellitus treated with oral medication and hypertension, well controlled and also treated with medication. A July 2007 VA treatment record shows creatinine was 2.1 mg/dL. A December 2007 VA examination shows creatinine of 1.9 mg/dl and a BUN of 15 mg/dl. A March 2008 VA examination report notes "elevation of creatinine at 1.9 (which is above the normal limit of 0.5 to 1.4) was the basis for the renal insufficiency found in the Veteran." The Veteran reported having increased urinary frequency. A September 2013 VA examination report note a diagnosis of renal insufficiency with recurring proteinuria. Lab studies showed creatinine was 1.9 mg/dl and BUN was 15 mg/dl. A February 2015 VA treatment record notes "labs reviewed - kidney function stable with [creatinine of 1.9 mg/dl]." On August 2015 VA examination it was noted that lab studies in May 2015 revealed creatinine of 2.1 mg/dL and BUN of 17 mg/dL. The Veteran reported symptoms of fatigue, weight loss and lethargy. However, the VA examiner remarked that such symptoms were not shown by the medical records to be attributed to his renal failure with hypertension, and noted that the Veteran did not have any signs or symptoms due to renal dysfunction. His weight in the last three years was recorded as having been 224, 231, 231, 238, 239, 239, 230, and 232 pounds. The VA examiner remarked that the Veteran's renal failure with hypertension had remained stable, with no recent progression found in the past two and a half to three year period. The examiner opined that the Veteran's reported urinary symptoms were most likely attributed to his established benign prostatic hypertrophy (BPH) which had remained untreated. Cardura was last prescribed in 2007. It was noted that pseudoephedrine (which the examiner indicated may exacerbate BPH and urinary frequency) was also prescribed. An August 2017 VA treatment record notes creatinine was 2.1 mg/dL and BUN was 18 mg/dL. A February 2018 VA treatment record notes creatinine was 2.1 mg/dL and BUN was 22 mg/dL. On November 2017 VA examination, it was noted that the lab study findings in August 2017 of creatinine 2.1 mg/dL and BUN of 18 mg/dL. The Veteran reported that he was weak and lacked energy due to kidney issues. The examiner noted that the Veteran did not require regular dialysis, but had signs and symptoms due to renal dysfunction, namely lethargy and weakness. An August 2018 VA treatment record notes creatinine was 1.9 mg/dL and BUN was 19 mg/dL. A February 2019 VA treatment record notes creatinine was 1.8 mg/dL and BUN was 14 mg/dL. The Board finds that a rating in excess of 60 percent is not warranted at any time prior to November 7, 2017. For the next-higher (80 percent) rating to be warranted, the evidence must show persistent edema and albuminuria with BUN 40 to 80mg percent, creatinine 4 to 8mg percent, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation or exertion. Here, although the evidence reflects a definite decrease in kidney function that is a criterion for the 60 percent rating that is already assigned. BUN and creatinine levels have consistently been well below 40mg percent and 8mg percent, respectively. Treatment records show BUN was between 15 and 19 percent prior to November 17, 2017; creatinine levels were between 1.8 and 2.1. Further, the evidence does not show that that the Veteran experienced generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion due to his kidney disability. Although the Veteran reported symptoms of fatigue, weight loss and lethargy on August 2015 VA examination, the VA examiner noted that such symptoms were not shown in the medical records to be attributed to his renal failure with hypertension (and the examiner pointed out that his weight in the preceding three year period was essentially stable). The record does not suggest that the renal dysfunction and associated symptoms were characteristic of "poor" health prior to November 7, 2017. Furthermore, the Board finds that a 100 percent rating for the Veteran's renal failure with HTN is not shown to be warranted at any time since November 7, 2017. As noted above, on the VA examination on that date the examiner indicated that the Veteran's renal dysfunction resulted in lethargy and weakness. Persistent edema and albuminuria were not found, and BUN was 18, and creatinine was 2.1. The Veteran did not require dialysis, and there was no indication that he was limited to sedentary activity due to renal dysfunction. An August 2018 VA treatment record reflects creatinine was 1.9 mg/dL and BUN was 19 mg/dL, and a February 2019 VA treatment record reflects creatinine was 1.8 mg/dL and BUN was 14 mg/dL. Such findings clearly do not meet, or approximate, the criteria for a 100 percent schedular rating (or suggest a disability picture consistent with such rating). The preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.