Citation Nr: 21023324 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-28 164 DATE: April 20, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for status post right radical nephrectomy for renal cell carcinoma with left nephropathy and hypertension is denied. FINDING OF FACT The Veteran’s service-connected status post right radical nephrectomy for renal cell carcinoma with left nephropathy and hypertension is not shown to have been productive of constant albuminuria with some edema, a definite decrease in kidney function, or hypertension with diastolic pressure predominantly 120 or more. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 percent for status post right radical nephrectomy for renal cell carcinoma with left nephropathy and hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.115a; Diagnostic Codes 7101, 7500. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to November 1972. He died in November 2014, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 VA Regional Office (RO) rating decision. In September 2014, the Board had granted the Veteran’s claim for entitlement to disability benefits for status post right radical nephrectomy for renal cell carcinoma with left nephropathy and hypertension. In April 2015, VA determined that the appellant was eligible to be named substitute appellant. In July 2016, the RO implemented the Board’s September 2014 decision and assigned an initial 30 percent disability rating effective February 25, 2010. The appellant filed a Notice of Disagreement with the disability rating assigned by the RO. In a March 2019 decision, the Board denied the appellant’s claim. The appellant appealed the Board’s March 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Memorandum Decision, the Court vacated and remanded the Board’s March 2019 decision for further proceedings consistent with the decision. The Board notes that the Court’s decision included the statement that “in May 2017, the appellant asserted that [the Veteran] received substandard treatment at a VA Medical Center immediately prior to his death and suggested that, had medical providers acted appropriately, they might have prevented the cardiac episode that led to his death. R. at 23; see 38 U.S.C. § 1151.” The Board notes that according to 38 C.F.R. § 3.151(a), a claim for compensation must be filed using a specific form prescribed for that purpose by the Secretary. If the appellant wishes to seek benefits under 38 U.S.C. § 1151, she and her representative should file the requisite form with her local RO. Entitlement to an initial rating in excess of 30 percent for status post right radical nephrectomy for renal cell carcinoma with left nephropathy and hypertension The Court determined that the Board had erred in finding that the appellant’s claim for a higher initial rating for status post right radical nephrectomy for renal cell carcinoma with left nephropathy and hypertension should be denied as a matter of law. The Court noted that a “substitute has the same rights regarding hearings, representation, appeals, and the submission of evidence as would have applied to the claimant had the claimant not died.” See 38 C.F.R. § 3.1010(f)(3) (emphasis added). The Court noted that the Veteran’s claim for entitlement to disability benefits for the effects of his renal cancer included a request for the maximum disability rating available to him, and that the appellant as substitute could pursue a higher initial rating. The RO has evaluated the Veteran’s right nephrectomy as 30 percent disabling under DC 7500. Under DC 7500, the 30 percent is the maximum evaluation available, and it directs rating as renal dysfunction if there is nephritis, infection, or pathology of the other kidney. Renal dysfunction is rated under 38 C.F.R. § 4.115a. Under this regulation, a 30 percent evaluation is warranted for albumin in the urine, whether 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. Id. A 60 percent evaluation is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. Id. For an 80 percent disability rating under Diagnostic Code 7500, a veteran must have persistent edema and albuminuria with BUN 40 to 80 mg percent; or, creatinine 4 to 8 mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Under 38 C.F.R. § 4.104, DC 7101, a 40 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 120 or more. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Evidence A June 2010 treatment record noted that the Veteran’s blood pressure was 165/85. A July 2010 VA examination noted blood pressure readings of 158/88, 160/88, and 160/88. The Veteran’s albumin was noted as 4.2 g./dl., with normal range indicated as 2.9-5.0. BUN was noted as 22 and creatinine 1.0. The examiner did not describe any edema. A May 2011 treatment record noted blood pressure as 148/76. Albumin was 3.9. BUN was 24. Creatinine was 0.93. In January 2012 blood pressure was noted as 152/81. Albumin was 4.0. Creatinine was noted as 0.96. In October 2012, blood pressure was 127/71. In May 2013, blood pressure was 132/75. In July 2013, blood pressure was 134/76 and creatinine was 0.91. There was no pedal edema present. In October 2013, the Veteran was seen for complaint of chest pain. At that time, his blood pressure was noted to be 209/104. In January 2014, the Veteran’s blood pressure was 144/80. Proteinuria and pedal edema were noted. In February 2014 and again in May 2014, proteinuria and pedal edema were noted. In July 2014, no pedal edema was present. Blood pressure was noted as 156/82. On VA examination in July 2014, blood pressure readings of 150/90, 148/88, and 148/88 were noted. BUN was 29. Creatinine was 1.1. The examiner noted there was no renal dysfunction. The examiner did not note edema or proteinuria. In September 2014, blood pressure was 154/81 and no pedal edema was present. In October 2014, a blood pressure reading of 149/74 was noted. Analysis The Board finds that an initial rating in excess of 30 percent is not warranted. With the exception of the one occasion in October 2013, there are no diastolic blood pressure readings of 120 or more. Some pedal edema was documented from January 2014 to May 2014; however, this was not shown to be more than the “transient or slight” edema contemplated by the current 30 percent rating. Edema was not present for the remainder of the appeals period from February 2010 to November 2014. Further, albumin levels were normal in July 2010 and May 2011. While proteinuria was noted from January 2014 to May 2014, it was not noted during the remainder of the appeals period from February 2010 to November 2014. Thus, constant albuminuria cannot be said to have been present. There are no findings noting or indicating a definite decrease in kidney function. The July 2014 examiner noted that the Veteran did not have renal dysfunction. The Board therefore finds that the evidence is insufficient to show that the Veteran’s service-connected right nephrectomy with left nephropathy and hypertension was productive of constant albuminuria with some edema, a definite decrease in kidney function, or hypertension at least 40 percent disabling under DC 7101 (diastolic readings of 120 or more). Accordingly, the Board finds that the criteria for a rating in excess of 30 percent under 38 C.F.R. § 4.115A have not been met and that the claim is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.