Citation Nr: 21075205 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-41 770 DATE: December 17, 2021 ORDER An initial compensable disability rating for nephritis (claimed as kidney disease) with hypertension is denied. FINDING OF FACT At no time during the relevant appeal period has the Veteran's nephritis been shown to cause albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. CONCLUSION OF LAW The criteria for an initial compensable evaluation for nephritis with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, 4.115b, DC 7502. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1966. The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in September 2021 at the Louisville, Kentucky, Regional Office (RO). A transcript of the hearing is of record. The Veteran was awarded service connection for nephritis in a November 2016 rating decision and assigned a noncompensable disability evaluation, effective September 2, 2016, pursuant to DC 7502. 38 C.F.R. § 4.115b. He timely appealed seeking a higher disability rating. Nephritis is rated according to the criteria for renal dysfunction. In order to receive a 30 percent rating under DC 7502, there must be "albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101." 38 C.F.R. § 4.115b. Under DC 7101, a 10 percent rating is available three ways, diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who require continuous medication for control. 38 C.F.R. § 4.104. A 60 percent disability rating is warranted when there is constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent disability rating is warranted when there is 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. Lastly, a 100 percent disability rating is warranted when there is renal dysfunction that requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. The evidence of record does not support a compensable rating for the Veteran's nephritis with hypertension. 38 C.F.R. § 4.7. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. The October 2016 and September 2017 VA kidney conditions examination reports indicated a diagnosis of nephritis, but found that it had not caused any renal dysfunction. The Veteran has never had a history of kidney, ureteral or bladder calculi. He has not had a history of kidney transplant or removal. There has been no evidence of tumors or neoplasms. Diagnostic testing revealed normal BUN, creatinine, EGFR, and proteinuria (albumin) studies. There was no evidence of hyaline or granular casts and no evidence of abnormal red blood cells. The September 2017 VA hypertension examination report indicated that the Veteran's hypertension was treated with continuous medication, but he did not have a disorder of a diastolic blood pressure elevation to predominately 100 or more. The blood pressure reading were 128/60 and 126/60 in September 2017 and 118/62 in June 2017. A review of the VA treatment records during the period of appeal also reflect normal kidney function. For example, in March 2018, July 2019, December 2019, and December 2020, the Veteran's primary care physician wrote: "Kidney function (creatinine): Looks good!" In December 2018 she wrote that "Kidney function (creatinine): Looks good! Your potassium is a little high. Please limit high potassium foods (potatoes, bananas, oranges, orange juice." The Veteran's most recent blood pressure reading 155/72 in August 2021. The blood pressure readings taken at the VA medical facility and those reported by the Veteran in the telephone care notes did not indicate his diastolic pressure predominantly 100 or more or that the systolic pressure predominantly 160 or more. Therefore, an increased evaluation above noncompensable for the Veteran's service-connected nephritis with hypertension is not warranted in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned noncompensable rating, and no higher. The criteria for a compensable rating for nephritis with hypertension are not met, as the Veteran does not have renal dysfunction manifested with albumin constant or recurring with hyaline and granular casts or red blood cells; transient or slight edema; or hypertension that is at least 10 percent disabling. Regarding his hypertension, specifically, at no time during the period on appeal has the Veteran's hypertension manifested with diastolic pressure predominantly 100 or more, or with systolic pressure predominantly 160 or more. In addition, while the record reflects that the Veteran has been on medication for his hypertension, it does not reflect that the Veteran required the medication due to a history of diastolic pressure predominantly 100 or more that required control. The Board notes it has also considered the competent and credible lay evidence from the Veteran and his wife. At the 2021 Board hearing, testimony indicated that the Veteran had been on a diet and cut things like salt out of it. However, he denied taking any medication for the kidney, he denied having been hospitalized in the previous two years for his kidney disease, and he denied having been told that there was any decrease in his kidney function. The testimony did suggest that the Veteran and his wife thought other problems might be connected to the Veteran's kidney, such as urination issues and infections, but the treatment fail to show actual dysfunction. The Board has considered the testimony, but finds the medical evidence to be more probative in assessing whether the criteria for a compensable rating were met. (Continued on the next page) Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an increased rating for his nephritis with hypertension. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.