Citation Nr: 21012911 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-04 142 DATE: March 5, 2021 ORDER An evaluation of 80 percent for renal cell carcinoma, status post right nephrectomy and adrenalectomy with residual left kidney failure, is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s renal cell carcinoma, status post right nephrectomy and adrenalectomy with residual left kidney failure, is shown to have been productive of renal dysfunction with persistent edema and albuminuria, and generalized poor health, but he is not shown to be precluded from more than sedentary activity or to regularly need dialysis. 2. The Veteran’s service-connected kidney disability has rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 80 percent, and no more, for renal cell carcinoma, status post right nephrectomy and adrenalectomy with residual left kidney failure, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.115a, 4.115b, Diagnostic Codes 7500, 7528. 2. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In February 2021, the Veteran was afforded a hearing before the undersigned. At his hearing, it was indicated that the Veteran desired to waive a review of all evidence not previously reviewed by the Agency of Original Jurisdiction. See 38 C.F.R. §§ 20.1304 (c). 1. Initial increased evaluation, renal cell carcinoma, status post right nephrectomy and adrenalectomy with residual left kidney failure. The Veteran asserts that he is entitled to an increased initial evaluation for his renal cell carcinoma, status post right nephrectomy and adrenalectomy with residual left kidney failure. During his hearing, held in February 2021, he testified to the following: He used to work maintaining pools. He last worked in October 2020. He has stage 3 kidney disease which may worsen. He has been told not to exert himself. During the course of the day, he has to lay down at least once for a couple of hours to rest. He feels easily fatigued, especially after doing chores, raking leaves, gardening, or doing maintenance around the house. If he is on his feet for a period of time, his legs will swell up, and he must elevate his feet. He is 5 feet 10½ inches tall and he weighs 190 pounds. He has pain that is aggravated by activity. With regard to the history of the disability in issue, the Veteran had a history of proteinuria as early as 1998. In December 2014, he was found to have a right renal mass measuring 11 centimeters, status post total (right radical) nephrectomy. VA progress notes, dated between December 2014 and January 2015, note that his wound was healing well. He weighed between 180 and 186 pounds. Creatine was within normal limits. Reports form Stony Brook Urology, dated between 2014 and January 2017, showed that the Veteran underwent a right nephrectomy in December 2014. Thereafter, he was noted to have continued elevated creatine and proteinuria. Overall, he weighed between 185 and 200 pounds. A January 2017 magnetic resonance imaging study (MRI) of the abdomen noted scattered, mostly simple left renal cysts that suggested renal disease. In July 2017, the RO granted service connection for the disability in issue, evaluated as 30 percent disabling, with an effective date of March 14, 2017. In November 2017, after obtaining additional evidence, the RO increased the Veteran’s evaluation to 60 percent, with an effective date of March 14, 2017. The Veteran has appealed the issue of entitlement to an initial evaluation in excess of 60 percent. The Veteran’s renal cell carcinoma, status post right nephrectomy and adrenalectomy with residual left kidney failure, has been evaluated as 60 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Codes (DCs) 7500-7528. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned). Under 38 C.F.R. § 4.115b, DC 7500, the minimum rating assignable for the removal of one kidney is 30 percent. Residuals of kidney removal may be rated as renal dysfunction if there is nephritis, infection, or pathology of the other. 38 C.F.R. § 4.115b, DC 7500. Under 38 C.F.R. § 4.115a, an 80 percent rating is warranted for: Renal dysfunction: Persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatine 4 to 8 mg%, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. An April 2017 VA kidney conditions disability benefits questionnaire (DBQ) noted a history of renal cancer in 2014, with a right nephrectomy, and chronic renal failure after surgery, but no recurrent cancer. There was renal dysfunction/renal failure. Dialysis was not required. There was no history of recurrent symptomatic urinary tract or kidney infections, or signs or symptoms due to renal dysfunction. There was no nephritis, infection, or pathology of the other kidney. There was no associated benign or malignant neoplasm or metastases. BUN, creatine, and EFGR (estimated glomerular filtration rate) were abnormal. There was no impact on the Veteran’s ability to work. In a supplemental opinion, dated in August 2017, the April 2017 VA examiner stated that, despite contradictory language in the April 2017 DBQ, the Veteran has chronic left renal failure, and that it is at least as likely as not that he suffers from some type of pathology involving the left kidney, as demonstrated by findings of an elevated creatinine level between December 2014 and January 2015. Private treatment reports form Stony Brook Urology, Stony Brook Nephrology, and Northwell Health, dated between 2017 and 2020, show that the Veteran weighed between 185 and 204 pounds. He repeatedly denied weight loss. The Veteran was hospitalized for one day on several occasions for evaluation and management of his renal cell carcinoma, to include a January 2018 hospitalization with complaints of fatigue, and leg swelling and pain. Laboratory testing summaries covering testing between June and November of 2018 note elevated creatine levels and BUN/creatine ratios. In September 2018, the Veteran was noted to have continued elevated creatine. Laboratory testing showed that creatine and total protein were above normal limits. Several MRIs (magnetic resonance imaging studies) of the abdomen noted post right nephrectomy for renal cancer, with no abnormal soft tissue present within the nephrectomy bed, or that the nephrectomy bed was unremarkable, no evidence of hydronephrosis or hydroureter of the now solitary left kidney, and that there were multiple subcentimeter simple left renal cysts, but no enhancing lesions. The impressions noted that there was no evidence of disease recurrence or progression/distant metastatic disease. There were stable, multiple, likely simple cysts in the left kidney. In November 2018, he was noted to have a history of multiple simple cysts in the left kidney, and an episode of lower extremity edema in June 2018, with current mild edema. He had stable renal function. There was no pedal edema. There was a notation of CKD (chronic kidney disease), stage III, due to hypertensive nephrosclerosis, status post right nephrectomy for papillary renal cell cancer. In March 2019, the Veteran reported improved lower extremity edema following use of HCTZ, with swelling in the evenings. In December 2019, he was noted to have a history of use of HCTZ for lower extremity edema that had improved, with cessation of HCTZ in May 2019. There was no current edema. In August 2020, creatine and BUN were above normal limits. An October 2020 report indicates hospitalization for one day. He had a history of proteinuria for which his medication had been increased at his last visit. There was no edema. The Veteran was noted to be self-employed, and to work at jobs involving pools and carpentry (this was apparently based on a November 2018 report). He was noted to have chronic kidney disease, stage 3, with intact renal function. VA progress notes, dated between 2017 and 2020, note that the Veteran repeatedly stated that he was doing well and “doing ok.” He was noted not to have had weight gain or weight loss. There were multiple findings of no edema, and multiple indications that he had not had weight loss or gain of more than 10 pounds in the last three months. He was noted to weigh between 190 and 204 pounds. His history was noted to include chronic kidney disease, stage III. With regard to more specific findings and reports, in February 2018, the Veteran reported that he was continuing with an exercise program and that he was going to get a bike or elliptical exercise machine to use in his house in the near future. In November 2018, he reported that he was very busy at work. A March 2019 report shows that he reported that he planned to resume work following recovery from hip surgery. A January 2020 report shows that the Veteran reported that he was working on projects outside the house that involve wood cutting. On examination, he was well-nourished. Strength was 5/5 in all muscle groups. He no longer had edema. An application for increased compensation based on unemployability (VA Form 21-8940), received in February 2021, shows that the Veteran reported that he worked full time in the pool business at three different addresses between 2010 and September 2020, with seven months of time lost due to illness for each location. The Board finds that an 80 percent evaluation is warranted. Under 38 C.F.R. § 4.115a, an 80 percent rating is warranted for symptoms that include renal dysfunction with persistent edema and albuminuria together with the requisite BUN or creatine levels. In this case, there are no findings expressed in “mg%” as noted in the regulation. However, the Veteran is shown to have stage 3 chronic kidney disease, multiple simple cysts in the left kidney with left renal dysfunction, persistent albuminuria, and to have had edema for about a year, between 2018 and 2019. In in February 2021, he testified that he continues to have edema of the legs. In addition, an 80 percent rating is warranted for “generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.” Here, the Veteran has credibly testified that he has symptoms that include pain, fatigue, weakness, and limitation of exertion, to include the need to lay down daily. Accordingly, the Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of the doubt, the criteria for an 80 percent evaluation have been met under 38 C.F.R. § 4.115a. To this extent, the claim is granted. An evaluation in excess of 80 percent is not warranted. Under 38 C.F.R. § 4.115a, a 100 percent rating is warranted 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%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. The Veteran does not assert, and there is no competent evidence to show that the Veteran requires dialysis. There is no competent evidence to show that his symptoms limit him to sedentary activity. See also VA progress notes, dated between 2018 and 2020 (showing that the Veteran reported that he was very busy at work, that he planned to resume work following recovery from hip surgery, and that he was working on projects outside the house that involve wood cutting). Accordingly, an evaluation in excess of 80 percent is not warranted. 2. TDIU. The Veteran has asserted that he cannot work due to his service-connected kidney disability, and the issue of entitlement to a TDIU has therefore been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the veteran’s education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). In determining entitlement to a TDIU, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); 38 C.F.R. §§ 3.341 (a), 4.16 (a). The Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that TDIU on a schedular basis is warranted. The criteria for a schedular TDIU are shown to have been met. See 4.16 (a). In the Board’s opinion, his renal symptoms are sufficiently severe to show that he is unemployable. The medical evidence shows that he has stage 3 chronic kidney disease with multiple simple cysts in the left kidney with left renal dysfunction, persistent albuminuria, and there is significant evidence of edema. He is shown to have had multiple hospitalizations for management and treatment of his kidney symptoms. He has reported missing seven months of work a year for the past few years due to his symptoms. See Veteran’s application for increased compensation based on unemployability (VA Form 21-8940), received in February 2021. He has testified that he last worked in October 2020. The Board therefore finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that TDIU on a schedular basis is warranted. The Board notes that the effective date of this award is not before the Board at this time, as it must be addressed by the RO in the first instance. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.