Citation Nr: 21008959 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-13 166 DATE: February 18, 2021 ORDER The reduction in rating from 60 percent to 0 percent for renal insufficiency, effective November 1, 2015, was proper; therefore, the appeal is denied. FINDING OF FACT The decision to reduce the evaluation for renal insufficiency from 60 percent to 0 percent was made in compliance with applicable procedural and substantive requirements, including consideration that the disability had resolved, reflecting an improvement in the ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the rating for renal insufficiency from 60 percent to 0 percent, effective November 1, 2015, did not involve a due process violation, and was proper. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. §§ 3.105 (e), 3.344, 4.115b, Diagnostic Code 7541. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1966 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin. In February 2020, the Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing held at the RO in Salt Lake City, Utah. A transcript of that hearing has been associated with the file. Historically, an April 2011 rating decision granted service connection for renal insufficiency, as secondary to diabetes mellitus, and assigned a 60 percent rating effective from November 18, 2010. Following a January 2015 VA examination which showed that the Veteran’s renal insufficiency had, in fact, resolved, the RO proposed to reduce the Veteran’s disability rating in a February 2015 rating decision. Subsequently, in a rating decision issued in August 2015, the RO reduced the rating to a noncompensable rate under Diagnostic Code 7541, effective November 1, 2015. On appeal, the Veteran contends that the reduction of the disability rating was improper, as his renal insufficiency resolved due to medication taken to treat his kidneys and his non-service connected hypertension. In any case involving a rating reduction, the fact finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 42022 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. Regulations impose a clear requirement that VA rating reductions be based upon a review of the entire history of the Veteran’s disability. Brown, supra. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, supra. The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The regulations provide for different criteria for the reduction of a disability rating based on the length of time the rating for the reduced disability has been in effect. Specifically, 38 C.F.R. § 3.344 (a) and (b) provide numerous procedural and substantive criteria that must be satisfied to reduce a rating that is considered stabilized. However, 38 C.F.R. § 3.344 (c) clarifies that those criteria are only applicable when the reduced rating has continued for “long periods at the same level (5 years or more).” Here, the rating in question was in effect for less than five years and thus re-examination disclosing improvement in disabilities may warrant a reduction in the rating. 38 C.F.R. § 3.344 (c). A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. In addition, reports of examination should be interpreted in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Veteran’s renal insufficiency is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7541. Under that code, renal involvement due to 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 Diagnostic Code 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 Diagnostic Code 7101. Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101 (diastolic pressure predominantly 120 or more) warrants a 60 percent evaluation. An 80 percent rating is warranted 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. Evidence relevant to the level of severity of the Veteran’s renal insufficiency includes multiple letters from private doctors, statements from the Veteran to include his testimony at a hearing before the undersigned, VA and private treatment records, and the reports of VA examinations. The Board finds that this evidence does not support a 60 percent rating under Diagnostic Code 7541, and, thus, the rating reduction was proper. The RO initially based the 60 percent disability rating on the report of a December 2010 VA examination, which showed that the Veteran’s creatine level was 1.52, indicating a decrease in kidney function. In December 2014, the Veteran underwent a VA kidney examination. The examiner diagnosed renal insufficiency, resolved. At that time, the Veteran reported taking medication to treat hypertension, and had no complaints or symptoms related to a kidney condition. Examination showed the Veteran did not have renal dysfunction, described as either persistent proteinuria, hematuria, or a GFR less than 60 cc per minute/1.73 m2. Diagnostic testing showed a BUN of 13, Creatinine at 1.19, and an EGFR of 60. Urinalysis was normal, with no proteinuria. The examiner noted that the current testing showed no renal insufficiency, and that the condition had resolved. In identically worded letters dated in February and November 2015, Dr. G.L.G., the Veteran’s private doctor, indicated that the Veteran was taking medication to treat not only his hypertension but also to prevent renal failure from recurring. He noted past bouts of renal failure, as recently as 2012, but indicated that the medication being prescribed maintained kidney function and prevented kidney failure. In a March 2015 letter, Dr. G.M. noted that the Veteran had renal failure caused by his diabetes mellitus and required continuous medication for its treatment. Dr. G.M. also noted that the Veteran had a large prostate for which he was being treated, and that this condition could contribute to renal failure. In a January 2016 letter, a Dr. C.G. indicated that the Veteran had diabetes, hypertension, hypercholesterolemia, osteoarthritis, and benign prostatic hypertrophy, and was taking multiple medications. Dr. C.G. explained that one of the medications was an ACE inhibitor which was specifically designed to control blood pressure and prevent diabetic kidney damage. In August 2016, the Veteran again underwent a VA examination. At that time, the examiner noted a past history of renal insufficiency which had resolved. He noted that the Veteran’s antihypertensive medications had been prescribed as a preventative measure to protect his kidneys from damage that could be caused by hypertensive medications, not for treatment of renal disease. All kidney testing performed at the examination showed normal kidney function. The examiner reiterated that there was no ongoing renal function impairment at the time of the examination. VA treatment records from 2017 continue to show a past history of renal insufficiency, but nothing currently diagnosed. Given the evidence of record, the Board finds that the reduction of the rating was proper, and restoration is not warranted. The December 2014 VA examination showed that the Veteran’s renal insufficiency had resolved and had not recurred. Subsequent evidence, including the letters from the Veteran’s various physicians, as well as the August 2016 VA examination report and VA treatment records, all showed a past history of renal insufficiency but none of the evidence showed any recurrence of the condition. The rating criteria under which the Veteran was rated, as per Diagnostic Code 7541, required 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, in order to qualify for a compensable rating. The evidence fails to show such. In fact, the evidence of record consistently shows the opposite—that the Veteran’s condition had resolved by the time of the reduction and did not recur. Absent evidence of symptoms for renal insufficiency, as is the case here, a compensable rating is not warranted. Thus, the Board finds that the reduction was proper. The Board acknowledges the Veteran’s argument, which is relayed in his multiple statements to VA as well as his testimony and which is supported by the 2015 letters from Dr. G.C., that without the medication which combats his renal insufficiency, the condition would exist at compensable levels. However, where a diagnostic code (such as Diagnostic Code 7541 in this case) does not explicitly contemplate the ameliorative effects of medication on a disability, the Board must evaluate the disability without regard to the ameliorative effects of the medication. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (“[I]f [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication.”) Therefore, the Board is barred from considering the healing effects of medication in this case. Nevertheless, the Veteran’s assertions, which is the only evidence of record addressing the effects o the medication, do not specifically assert that improvement in the disability would not have occurred without the medication. As such, the Board finds that the evidence supports a showing that the disability did in fact improve.  In reaching its decision, the Board has considered the both the benefit of the doubt doctrine and the fact that if doubt in a reduction case remains, the rating will be continued in effect. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; 38 C.F.R. § 3.344 (b); Gilbert, supra. However, for the above reasons, the weight of the evidence supports the reduction and those provisions are therefore not for application. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.