Citation Nr: 21011899 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 19-38 665 DATE: March 3, 2021 ORDER Entitlement to an initial compensable rating for retroperitoneal fibrosis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 11, 2018 is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran's retroperitoneal fibrosis are not manifested by voiding dysfunction requiring absorbent material which must be changed 2 to 4 times per day, urinary frequency involving daytime voiding intervals between 1 and 2 hours or awakening to void 3 to 4 times per night; the Veteran’s obstructed voiding involving hesitancy, slow stream, weak stream, and decreased force of stream are attributable to his service-connected end stage renal disease. 2. Prior to May 11, 2018, the Veteran’s service-connected disabilities did not render him unable to obtain and maintain a substantially gainful occupation. As of May 11, 2018, the Veteran has been assigned a 100 percent schedular rating and special monthly compensation. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for retroperitoneal fibrosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7529. 2. The criteria for a TDIU were not met prior to May 11, 2018 and the claim for TDIU is moot on and after May 11, 2018. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16(a), 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to May 1976. The Veteran filed a notice of disagreement for a higher rating, in relation to an October 2018 rating decision which granted service connection for retroperitoneal fibrosis with an evaluation of 0 percent effective May 11, 2018. In a November 2020 Statement of the case (SOC), the agency of original jurisdiction (AOJ) denied a higher rating and continued the non-compensable disability rating for the service-connected retroperitoneal fibrosis. The Veteran perfected a timely appeal of the denial to the Board of Veterans’ Appeals (Board). In September 2020, the Board remanded the issue of a higher rating for retroperitoneal fibrosis and determined that TDIU was raised on the record and was part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board therefore remanded the issues for further development, to include inviting the Veteran to complete a formal TDIU application form (VA Form 21-8940). The matter has returned to the Board for an appellate review. In January 2021, the AOJ granted entitlement to service connection for end stage renal disease as secondary to retroperitoneal fibrosis with an evaluation of 100 percent effective May 11, 2018. In that same rating decision, the RO granted entitlement to special monthly compensation based on housebound status effective from May 11, 2018. This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900(c)and38U.S.C. §7107. 1. Entitlement to an initial compensable rating for retroperitoneal fibrosis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's service-connected retroperitoneal fibrosis currently is rated as zero percent disabling (non-compensable) under DC 7529. The rating criteria for evaluating genitourinary system disabilities (located at 38 C.F.R. §§ 4.115a and 4.115b) provides that diseases of the genitourinary system must be rated as voiding dysfunction or urinary tract infection, whichever is predominant. In that regard, under voiding dysfunction, a 60 percent is warranted if the Veteran experiences continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of absorbent materials which must be changed more than four times per day. A 40 percent rating is warranted if the condition requires the use of absorbent materials which must be changed two to four times per day. A 20 percent is warranted if the condition requires the use of absorbent materials which must be changed less than two times per day. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7529. The Veteran contends that a compensable disability rating for his service-connected retroperitoneal fibrosis is warranted. The Veteran was afforded a VA examination in July 2018. The examiner noted that the Veteran has been treated with a variety of immunosuppressant agents over the years, most recently prednisone and cell cept. The examiner further noted that the Veteran was not being treated for retroperitoneal fibrosis which is felt to be currently stable. See July 2018 C&P Examination. In a May 2019 Stomach and Duodenal Conditions examination, the examiner noted that Veteran’s service-connected retroperitoneal fibrosis causes no intra-abdominal symptoms and that the Veteran is currently on no medications for this alone. The examiner stated however that, the retroperitoneal fibrosis has contributed to his end stage renal disease and that the Veteran has required hemodialysis since October 2018. See May 2019 C&P Examination. During his Board hearing in June 2020, the Veteran testified that he has no problems with urine leakage and does not use absorbent material. The Veteran also stated that he sometimes has problems with urgency and that he sees the doctor once a month for his condition but is not on any prescribed medication. The Veteran noted that he urinates once a day, but that this was the result of the dialysis. See June 2020 Hearing Transcript. The Veteran was recently afforded an examination in December 2020. The examiner noted that the Veteran denied any symptoms related to retroperitoneal fibrosis (e.g. abdominal pain, backpain, etc.). The examiner noted that the Veteran’s retroperitoneal fibrosis was stable, i.e., no improvement, and or no worsening of condition. The examiner stated that the retroperitoneal fibrosis has contributed to end stage renal disease for which the Veteran has been on hemodialysis since October 2018. See December 2020 C&P Examination. The Board finds the VA examination to be the most competent and persuasive medical evidence of record as to the severity of the Veteran's service-connected retroperitoneal fibrosis. The Board notes in this regard that an opinion regarding the relationship of the symptomatology attributable to the Veteran's service-connected retroperitoneal fibrosis is a complex medical question which requires expertise especially when the Veteran has a history of multiple genitourinary diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a compensable disability rating for retroperitoneal fibrosis. The Veteran essentially contends that his current genitourinary symptoms entitles him to a compensable rating for this disability. A review of the competent and persuasive evidence of record does not support the Veteran's assertions. The Board assigns significant probative weight to the medical opinions provided by the VA examiners during the appeal period. These examiners are qualified to diagnose a medical condition, its symptoms, and apply valid medical analysis to the significant facts and details of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008). The Board finds that the currently assigned zero percent (non-compensable) disability rating appropriately contemplates the current severity of the symptomatology attributable to the Veteran's service-connected retroperitoneal fibrosis. See 38 C.F.R. §§ 4.115a, 4.115b, DC 7529. The Board notes in this regard that more severe levels of impairment such as continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of absorbent materials at least less than two times per day are not shown in the medical evidence of record. The Board again recognizes that the Veteran experiences several of the symptoms listed for a compensable rating under DC 7529; however, the VA examiners specifically found that most of these symptoms are due to the Veteran's end stage renal disease, for which the Veteran is now service connected at 100 percent. Thus, the Board concludes that these symptoms do not support the assignment of a compensable disability rating for the Veteran's service-connected retroperitoneal fibrosis under DC 7529. Id. In summary, the Board finds that the criteria for a compensable disability rating for the Veteran's retroperitoneal fibrosis are not met and the claim is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 11, 2018 VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Board observes that the Veteran’s combined evaluation for compensation has been 100 percent since May 11, 2018. Since that time, he has also been in receipt of special monthly compensation at the housebound rate due to his end stage renal disease being rated at 100 percent and his additional service-connected disabilities of duodenal ulcer, schizophrenia, paranoid type, independently ratable at 60 percent. The Board recognizes that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Indeed, the Veteran is in receipt of a 100 percent schedular rating and special monthly compensation since May 11, 2018. The Board notes that TDIU is part of an increased rating claim. As noted above, in December 2018, the Veteran filed an NOD to the October 2018 rating decision for his retroperitoneal fibrosis. Thus, the Veteran’s TDIU claim has been pending since that time. The Veteran is in receipt of 100 percent rating for his end stage renal disease, secondary to his retroperitoneal fibrosis; and special monthly compensation effective May 11, 2018 (the date of retroperitoneal fibrosis claim). Thus, the Veteran has been in receipt of a total schedular rating and special monthly compensation throughout the course of the entire period on appeal. The Board believes that the total schedular rating that was assigned as of May 11, 2018 does, in fact, moot the TDIU claim on and after that date. In this case, along with the assignment of the 100 percent schedular rating for end stage renal disease, the Veteran was also awarded special monthly compensation under 38 U.S.C. § 1114(s), effective May 11, 2018. The Veteran's VA benefits are already maximized for the time period on and after May 11, 2018, during which he had a total schedular rating, so consideration of TDIU would result in no additional discernable benefit. Therefore, to the extent the TDIU claim encompasses the time periods after May 11, 2018 during which the Veteran was already awarded a 100 percent schedular rating plus special monthly compensation, that part of the claim is moot. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.