Citation Nr: 21076206 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-12 478 DATE: December 22, 2021 ORDER Entitlement to a rating in excess of 30 percent for renal insufficiency is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's renal insufficiency most closely approximates a 30 percent rating and is not shown to have markedly decreased cardiovascular function. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for renal insufficiency have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 7541. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from February 1967 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a July 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) continuing the Veteran's 30 percent disability rating for renal insufficiency due to diabetes mellitus II. The Veteran's March 2017 VA Form 9 indicated a request for a Board hearing. VA was notified of the Veteran's November 2018 death and substitution of the Veteran's surviving spouse (Appellant) was granted in July 2019. A September 2021 correspondence from the Appellant expressed her desire to withdraw the hearing request. 38 C.F.R. § 20.704 (e). In August 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's remand directed the RO to obtain an addendum opinion regarding the effects of the Veteran's renal insufficiency on his cardiovascular function. An opinion sufficient to adjudicate the claim was provided by an appropriate clinician in December 2019. As such, substantial compliance has been achieved. Id. at 271. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence of record indicates fluctuations in the severity of symptoms during the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Entitlement to a rating in excess of 30 percent for renal insufficiency The Appellant contends the Veteran's symptoms of renal insufficiency at the time of his death warranted a higher disability rating. The Veteran was in receipt of 30 percent evaluation, effective May 25, 2010. The Appellant contends the Veteran's renal insufficiency contributed to his cause of death as it resulted in a significant decrease in cardiovascular function. Renal insufficiency due to diabetes mellitus type II is rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7541. Under DC 7541, renal involvement in diabetes mellitus is rated as renal dysfunction. Under 38 C.F.R. § 4.115a, renal dysfunction is rated as noncompensable for albumin and casts with history of acute nephritis; or, hypertension noncompensable under DC 7101. A 30 percent rating is warranted for 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 DC 7101. Constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under DC 7101 warrants a 60 percent evaluation. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80 mg/mL; or creatinine 4 to 8 mg/mL; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A maximum 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/mL; or creatinine more than 8 mg/mL; or markedly decreased function of kidney or other organ systems, especially cardiovascular. Albuminuria refers to the presence of albumin, a protein, in the urine. Dorland's Illustrated Medical Dictionary 45 (32nd ed. 2012). Generally, a urine sample containing more than 30 mg of albumin suggests albuminuria. Albuminuria is also known as proteinuria and is the presence of an excess of serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995). Upon review of the evidence, the Board finds a rating in excess of 30 percent is not warranted at any time during the appeal period. The Veteran's renal disorder was initially diagnosed in May 2010 during a VA examination for his service-connected diabetes mellitus type II. The examination included laboratory testing showing mild kidney damage and a formal diagnosis of renal insufficiency was made due to poor management of diabetes. A comprehensive metabolic panel test indicated creatine of 0.9 mg/dL and BUN of 24 mg/dL. The pertinent medical evidence of record consists of regular VA treatment from 2015 to 2018 and private treatment records from 2014 to 2017. The Veteran's private treatment records do not show BUN results exceeding 32.1 mg/dL or creatinine exceeding 1.2 mg/dL at any time during the appeal period. Similarly, regular VA treatment from 2015 to 2018 does not support an increased evaluation. Laboratory testing does not show a BUN result over 29 mg/dL or creatinine exceeding 1.0 mg/dL. The Veteran's most recent VA examination, in June 2016, shows a continued diagnosis of diabetic nephropathy with creatinine of 1 mg/dL and BUN of 29 mg/dL with an absence of edema. There is no objective evidence of definite decrease in kidney function or constant albuminuria. The most recent and relevant VA treatment, dated January 2017, shows review of laboratory results with normal kidney function and an absence of edema. The Veteran did not receive a diagnosis of nephritis or glomerulonephritis, and he is not shown to have experienced generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion due to his renal condition. A 60 percent rating may be awarded if hypertension at least 40 percent disabling is present. Under DC 7101 for hypertensive vascular disease, a 40 percent rating for is warranted if diastolic pressure is predominately 120 or more. The Veteran's diastolic pressure readings throughout the appeal period do not exceed 82. Therefore, the Veteran's hypertension was not at least 40 percent disabling at any time prior to his death. The Board's August 2019 remand aimed to clarify the Veteran's condition and whether it markedly decreased the function of the kidney or other organ systems. Specifically, a medical opinion was requested to determine whether the infrarenal nature of the Veteran's aortic aneurysm medically indicates his renal insufficiency caused markedly decreased cardiovascular function as contemplated with a 100 percent rating. A December 2019 addendum opinion concluded the condition less likely than not caused decreased cardiovascular function. The examiner explained that aortic aneurysm is most commonly caused by hypertension and atherosclerosis, and further, renal insufficiency was the result of diabetes mellitus II and hypertension. The examiner cites the Veteran's medical history of several heart conditions prior to the recent finding of infrarenal aortic aneurysm. He concluded the Veteran's decreased cardiovascular function was caused by his diabetes mellitus II and hypertension over time, rather than a renal condition. Based on the above, the criteria for a disability rating greater than 30 percent for renal dysfunction have not been met. The objective evidence over the course of the appeal does not reflect BUN over 40 mg/dL or creatinine over 4 mg/dL. The objective findings of record do not reflect that the Veteran's renal dysfunction was manifested by generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Veteran did not require regular dialysis, nor was he precluded from more than sedentary activity due to persistent edema and albuminuria. The evidence of record also does not reflect that he had markedly decreased function of the kidney or other organ systems, especially cardiovascular. The Veteran's ischemic heart disease predated his diagnosis of renal insufficiency and was not found to cause decreased cardiovascular function. The Board notes that the Appellant's representative argues that extraschedular consideration should be afforded to this case. See October 2021 statement. Generally, the degrees of disability specified in the VA's Schedule for Rating Disabilities are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegate that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1). The determination of whether a Veteran is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the claimant's disability picture. This determination requires "a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. If the schedular criteria are found inadequate, then the second inquiry is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. Id. at 116. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. This task is also to be performed by the RO or the Board. Id. If these two elements are met, then the third step is to refer the case to the Director of Compensation Service to determine whether the claimant's disability picture requires the assignment of an extraschedular rating. Id.; see also Anderson v. Shinseki, 23 Vet. App. 423, 428-29 (2009) (holding that when the Board finds that an extraschedular rating may be warranted, it cannot grant an extraschedular rating in the first instance). Regarding the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. As discussed, the Veteran's renal insufficiency is rated under the VA Schedule for Rating Disabilities that specifically addresses renal dysfunction. The Board finds the complaints and symptoms reported by the Veteran and the Appellant that have been attributed to his renal disability are contemplated in the schedular diagnostic criteria. Neither the Veteran nor the Appellant described any exceptional or unusual symptoms associated with his renal insufficiency, and they have not described symptoms that affected him in any exceptional or unusual manner. The Board notes that the Appellant argues that the Veteran's renal insufficiency contributed to his decreased cardiovascular function, thereby causing death. However, the rating criteria provides ratings for symptoms due to renal dysfunction such as generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, persistent edema and albuminuria, and markedly decreased function of kidney or other organ systems, especially cardiovascular. No physician or VA examiner has indicated that the Veteran's service-connected disability was of an unusual or exceptional severity. Crucially, although the rating criteria provides compensation for markedly decreased function of the kidney or cardiovascular systems, the December 2019 VA examiner opined that the Veteran's renal insufficiency did not cause his markedly decreased cardiovascular function. The Board finds the medical evidence more probative than the lay evidence because the issue is medically complex. Although the specific limitations and symptoms experienced by the Veteran in his daily life may not be mentioned in the rating criteria, that fact alone does not render the schedular criteria impractical for evaluating this disability. By regulation, the schedular ratings are assumed to provide adequate compensation for "considerable loss of working time from exacerbation or illness proportionate to" the nature and severity of the disability. 38 C.F.R. § 4.1. Their basis is the ability to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The objective data upon which the schedular evaluations are based serve as markers of disability at different levels of severity in terms of the ability to function under the ordinary conditions of daily life and employment without specifically describing how that disability may manifest in everyday life. Therefore, the rating criteria are not inadequate solely because they do not mention a particular symptom, clinical finding, example of functional impairment, or manner of coping with the disability when they are generally devoid of any such description whatsoever. In this case, the evidence preponderates against finding that the pathology, symptoms, and functional limitations associated with the Veteran's renal insufficiency are not contemplated by the rating criteria, given that the rating criteria are assumed to capture a wide range of disabling manifestations. 38 C.F.R. § 4.1. The evidence does not show symptoms or disabling manifestations of the Veteran's renal insufficiency that are different from, or more severe than what is contemplated by the schedular criteria such as to render their application impractical. To the extent that the Appellant seeks compensation for the Veteran's death, the Board notes that a July 2019 rating decision granted service connection for the Veteran's cause of death. Accordingly, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology as well as functional impairment due to the service-connected disability discussed above. As the Veteran's renal insufficiency is reasonably contemplated by Diagnostic Code 7541 and other relevant diagnostic codes, the threshold issue under Thun is thus not met. Thus, the Board cannot conclude that referral for an extraschedular rating is warranted. For the reasons discussed above, the criteria for a disability rating in excess of 30 percent for renal insufficiency have not been met or approximated. The preponderance of the evidence is against the claim and the claim for an increased rating is denied. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.