Citation Nr: 21024012 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-14 288 DATE: April 21, 2021 ORDER Entitlement to a disability rating of 80 percent for microalbuminuria with hypertension prior to May 7, 2013, is granted. REMANDED Entitlement to service connection for a gastrointestinal disorder is remanded. FINDING OF FACT Prior to May 7, 2013, the Veteran’s albuminuria with hypertension was manifested by generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSION OF LAW Prior to May 7, 2013, the criteria for a rating of 80 percent for microalbuminuria with hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.115a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 until January 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in January 2019; a transcript is associated with the record. In July 2019, the Board denied the Veteran entitlement to a rating in excess of 60 percent for microalbuminuria with hypertension and remanded the claim for entitlement to service connection for a gastrointestinal disorder for further development. Regarding the increased rating claim, in August 2020 the Court of Appeals for Veterans’ Claims (Court) granted the parties’ joint motion for partial remand. The joint motion stated that on remand, the Board must consider 3 specific items of favorable evidence; the Board will discuss them below. The claims now both return to the Board for further adjudication. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38C.F.R. §§4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Entitlement to a rating in excess of 60 percent for microalbuminuria with hypertension prior to May 7, 2013 Preliminarily, the Board notes that it previously granted a 100 percent rating for this disability from May 7, 2013. The Board will not disturb this portion of the staged rating. Therefore, the question for the Board is whether the Veteran is entitled to a rating in excess of 60 percent prior to May 7, 2013. Dysfunctions of the genitourinary system are rated under §4.115a. Renal dysfunction, in particular, is rated as follows: A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. 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. 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 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. After reviewing the evidence in this case, and resolving all doubt in the Veteran’s favor, the Board finds that for the period prior to May 7, 2013, his service-connected microalbuminuria with hypertension is properly rated at 80 percent. The Veteran underwent a VA examination in January 2012. The examiner noted the Veteran reported no progressive weight loss, no progressive weight gain, and no progressive loss of strength. The examiner noted he described no effect on his kidneys, although he reported experiencing urinary incontinence without the usage of a pad. The examiner noted the Veteran’s report of shortness of breath, chest pain, and easy fatigue. He concluded that the Veteran’s microalbuminuria “is a sign of kidney damage not a diagnosis in and of itself” and found his microalbuminuria with hypertension to be an “asymptomatic condition.” The examiner further diagnosed the Veteran with chronic kidney disease, which he found to limit the Veteran to light duty work and limited lifting and standing. VA treatment records from Fayetteville VAMC reflect the Veteran had ongoing treatment for his kidney functions. Testing in September 2011 revealed BUN of 17mg% and creatinine of 1.6mg%. As noted above, the parties’ joint motion asked the Board to consider 3 specific items of favorable evidence. They are: [1] an October 2011 VA treatment record noting that the Veteran had generalized weakness and lack of energy, [2] a June 2012 private treatment record documenting the Veteran’s shortness of breath after walking only short distances, and [3] a July 2012 lay statement wherein the Veteran stated that he could not walk 50 feet without being tired and out of breath or lift any weight at all. Upon consideration of the above, the Board finds that the symptoms of the Veteran’s service-connected microalbuminuria with hypertension are consistent with an 80 percent rating for the period prior to May 7, 2013. The evidence above, to include the 3 items referenced in the parties’ joint motion, indicate that the Veteran has generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Board particularly notes the October 2011 VA treatment record indicating that the Veteran is generally weak with a lack of energy and the June 2012 private treatment record describing how the Veteran exhibits shortness of breath walking on even short distances. Resolving all doubt in the Veteran’s favor, the Board finds that an 80 percent rating is warranted prior to May 7, 2013. However, the Board finds that a 100 percent rating is not warranted during this time. As stated in the prior Board decision, and this finding was not challenged by the parties’ joint motion, the Veteran did not start on regular dialysis until May 7, 2013. Nor does the evidence show during this period that the Veteran’s renal dysfunction precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. For this reason, the Board concludes that a rating in excess of 80 percent is not appropriate prior to May 7, 2013. In sum, the Veteran’s microalbuminuria with hypertension is most appropriately rated at 80 percent, but no higher, prior to May 7, 2013. The benefit of the doubt doctrine has been applied in the Veteran’s favor. REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disorder is remanded. Unfortunately, remand is necessary to obtain an addendum VA examination that complies with the Board’s prior directives. Stegall v. West, 11 Vet. App. 268 (1998). In the July 2019 remand, the Board directed the VA examiner to opine on both direct and secondary theories of causation concerning the Veteran’s claimed gastrointestinal disorder. Regarding a direct theory, the VA examiner was asked to discuss the Veteran’s service treatment records which showed numerous complaints of abdominal pain and epigastric pain. However, at the subsequent December 2019 VA examination, the VA examiner failed to do so. Instead, the examiner wrote that the Veteran “has had an extensive GI workup and found to have abdominal pain due to rectus diathesis this condition was not noted in service.” While the VA examiner noted that the Veteran’s rectus diathesis was not noted in service, he failed to discuss the Veteran’s affirmative complaints of abdominal pain and epigastric pain as required by the July 2019 Board directives. Remand is therefore necessary. Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the VA examiner’s opinion on whether the Veteran’s gastrointestinal disorder was caused or aggravated by any service-connected disability is inconsistent. Specifically, while the VA examiner explained that “there is no relationship between his rectus diathesis” and his service-connected back disability, hypertension, psychiatric disability, diabetes, diabetic neuropathy, or congestive heart failure, he also stated that “his constant abdominal pain may be due to his large rectus diathesis versus vascular insufficiency given his poorly controlled [diabetes] vs functional pain.” On remand, the VA examiner must clarify this position. Additionally, the Veteran has been diagnosed with several gastrointestinal disorders during the course of this appeal including ventral hernia, irritable bowel syndrome, rectus diathesis, and gastroesophageal reflux disease (GERD). The December 2019 VA examiner only provided an etiology regarding rectus diathesis. On remand, the addendum VA examiner must provide an etiology, on both a direct and secondary basis, for all gastrointestinal disabilities diagnosed during the appeal period. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted for a disability that manifests at any point during the pendency of a claim, even if it subsequently resolves prior to resolution of the claim). The matters are REMANDED for the following action: Obtain an addendum opinion from a qualified examiner regarding the nature and etiology of the Veteran’s gastrointestinal disorder. The need for an additional examination (or telehealth appointment if a physical examination is not feasible) is left to the discretion of the examiner. The entire claims file, including this remand, must be made available to the examiner. The examiner must clarify the diagnosis of each gastrointestinal disorder the Veteran experiences, to include ventral hernia, irritable bowel syndrome, rectus diathesis, and GERD. For each such diagnosed disability, the examiner must offer an opinion to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed gastrointestinal disorder, to include ventral hernia, irritable bowel syndrome, and rectus diathesis had its onset in service or is otherwise related to service. The examiner must discuss the Veteran’s service treatment records which reflect multiple affirmative complaints of abdominal pain and epigastric pain. For example, January 1979 records show that the Veteran complained of abdominal pains for over a year, December 1987 records indicate that the Veteran complained of soreness in his stomach, and undated records (See STR – Medical filed March 19, 2015, Page 3) notes that the Veteran complained of epigastric burning pain daily for 3 months. The Board notes that this list is merely representative of the Veteran’s service complaints and is by no means exhaustive. (b) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed gastrointestinal disorder, to include ventral hernia, irritable bowel syndrome, and rectus diathesis, was caused by any of his service-connected disabilities. (c) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed gastrointestinal disorder, to include ventral hernia, irritable bowel syndrome, and rectus diathesis, was aggravated by any of his service-connected disabilities. The examiner must reconcile the December 2019 VA examiner’s position that “there is no relationship between his rectus diathesis” and his service-connected disabilities with the earlier statement in that examination report that “his constant abdominal pain may be due to his large rectus diathesis versus vascular insufficiency given his poorly controlled [diabetes] vs functional pain.” At the time of this decision, the Veteran is service-connected for microalbuminuria with hypertension, congestive heart failure, a psychiatric disability, diabetes mellitus, type II, spondylosis of the lumbar spine, diabetic peripheral neuropathy, hypertension, atrial fibrillation, and residuals to a left hand fracture. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.