Citation Nr: 21032753 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-31 155A DATE: May 27, 2021 ORDER Entitlement to an initial rating higher than 60 percent for chronic kidney disease with hypertension is denied. Entitlement to a rating higher than 10 percent for hypertension from December 3, 2012 to February 5, 2013 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 4, 2016 is granted. FINDINGS OF FACT 1. The Veteran's chronic kidney disease was not manifested by 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. 2. From December 3, 2012 to February 5, 2013, the Veteran's hypertension was manifested with diastolic pressure predominantly below 110 and systolic pressure predominantly below 200. 3. From December 11, 2013 until August 3, 2016, the Veteran's service-connected disabilities precluded the ability to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 60 percent for chronic kidney disease with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.115, 4.115a Diagnostic Code 7530. 2. The criteria for entitlement to a rating greater than 10 percent for hypertension from December 3, 2012 to February 5, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7101. 3. From December 11, 2013 until August 3, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to August 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2018 rating decision, the RO granted entitlement to a TDIU effective August 4, 2016. However, entitlement to a TDIU prior to August 4, 2016 remained on appeal as part of the increased rating claims as the Board found the TDIU issue was reasonably raised by the record as part of the Veteran's increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In May 2019, the claims were remanded by the Board to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ continued to deny the Veteran's claims (as reflected in an August 2020 supplemental statement of the case (SSOC)). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The predicate element in assigning several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Also, if 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. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. 1. Entitlement to an initial rating greater than 60 percent for chronic kidney disease with hypertension The Veteran contends that he is entitled to an initial rating higher than his currently rated 60 percent rating for chronic kidney disease with hypertension. Diagnostic Code 7530 evaluates chronic renal disease requiring regular dialysis and instructs the disability be evaluated under the criteria for renal dysfunction. See 38 C.F.R. § 4.115a, Diagnostic Code 7530. Under renal dysfunction, 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. Id. An 80 percent rating is warranted for (1) persistent edema and albuminuria with BUN 40 to 80mg%; or (2) creatinine 4 to 8mg%; or (3) generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. Additionally, a 100 percent rating is warranted for (1) requiring regular dialysis, or (2) 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. Id. Turning to the evidence of record, in October 2013, the Veteran underwent VA examinations. In his hypertension examination, the examiner noted the Veteran's diagnosed hypertension and remarked that his blood pressure has improved and diastolic was under better control. Blood pressure readings were 140/118, 160/110, and 132/102. Regarding functional impact, the Veteran stated that he had lost his job due to "having to be rushed to the ER" due to his hypertension. He reported that he often feels lightheaded and dizzy due to his high blood pressure and that it is difficult to work. At his October 2013 VA kidney examination, the examiner noted a diagnosis of kidney CKD stage 2/3. He remarked that the Veteran has a long history of hypertension with diastolic pressures in the 90 to 110 range. There was evidence of CKD stage 2/3, which was managed by his PCP. He also required potassium to manage his kidney issues. There was no history of type 2 diabetes mellitus (DM II). Testing revealed BUN at 24 mg; Creatine at 1.6; and EFGR at 58. The Veteran had renal dysfunction, but it did not require dialysis and there were no other reported signs or symptoms due to his renal dysfunction. The examiner stated that his hypertension/heart disease was caused by his renal dysfunction. January 2015 VA treatment records note the Veteran has been diagnosed with stage three chronic kidney disease with long standing hypertension. The report of a March 2018 VA kidney examination noted the Veteran's chronic kidney disease with hypertension. The Veteran took Diltiazem to help manage his blood pressure. The Veteran had renal dysfunction, but it did not require dialysis and there were no other reported signs or symptoms due to his renal dysfunction. The examiner stated that his hypertension/heart disease was caused by his renal dysfunction. There was no symptomatic renal tubular disorder; no frequent attacks of colic with infection (pyonephrosis); and no urolithiasis or urinary tract or kidney infections. Testing revealed BUN at 16 mg; Creatine at 1.4; and EFGR at 50. The report of an Apri 2018 VA hypertension examination noted the Veteran's hypertension. The Veteran reported that he went to the ER due to elevated blood pressure as well as nausea and a headache. He was currently on Diltiazem and he stated this normally controls his blood pressure. The examiner stated that the Veteran does not have a history of diastolic blood pressure elevation to predominantly 100 or more. Blood pressure readings were 160/105, 156/98, and 149/98. The report of a July 2020 VA kidney examination noted the Veteran's chronic disease caused by long standing hypertension. He reported that the Veteran's kidney function has been stable since onset and there are no current symptoms. The Veteran had renal dysfunction, but it did not require dialysis and there were no other reported signs or symptoms due to his renal dysfunction. The examiner stated that his hypertension/heart disease was not caused by his renal dysfunction. Testing revealed BUN at 13 mg; Creatine at 1.67; and EFGR at 54. There was no symptomatic renal tubular disorder; no frequent attacks of colic with infection (pyonephrosis); and no urolithiasis or urinary tract or kidney infections. The July 2020 VA hypertension examination noted the Veteran's diagnosed hypertension and commented that the Veteran does not have a history of diastolic blood pressure elevation to predominantly 100 or more. Blood pressure readings were 137/91, 145/94, and 131/98. The Board finds the Veteran is not entitled to an initial rating greater than 60 percent for his chronic kidney disease with hypertension as he does not meet the criteria for a higher rating under Diagnostic Code 7530. While the Veteran exhibited "decreased kidney function," there was no evidence of record that the Veteran had BUN 40 to 80mg.% In fact, at worst, the Veteran had BUN to 24 mg. Moreover, his creatinine was not shown to have reached 4 to 8mg%. Rather, the Veteran's creatinine never reached 2 or more mg%. In addition, the record is devoid of any evidence showing that the Veteran exhibited generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion due to his renal dysfunction. Where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Board also notes that a separate rating for hypertension for this period is not warranted, as the Veteran's symptoms from hypertension are specifically included with the rating criteria for renal dysfunction, and to assign a separate rating would be impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). Accordingly, the Board finds an initial rating greater than 60 percent for the Veteran's service-connected chronic kidney disease with hypertension is not warranted. The preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to a rating greater than 10 percent for hypertension from December 3, 2012 to February 5, 2013. Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided if diastolic pressure is predominantly 110 or more, or if systolic pressure is predominantly 200 or more. A 40 percent rating is provided if diastolic pressure is predominantly 120 or more. A 60 percent rating is provided if diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Blood pressure readings list the systolic pressure before the diastolic pressure. Applying this criteria to the facts of this issue as set forth above, the Board finds that a preponderance of the evidence does not establish that the Veteran had a diastolic blood pressure predominantly 110 or more, or a systolic blood pressure predominantly 200 or more from December 3, 2012 to February 5, 2013. A December 2012 private treatment report indicated that the Veteran had a history of hypertension with chest pressure and shortness of breath but that did not cause pain, dizziness, or diaphoresis. Moreover, there was no calf tenderness, fever, or chills. Additionally, his physical examination noted "unremarkable low likelihood of PE with normal HR between 80-90 and BP on admission [was] 120/80." In addition, the Veteran's October 2013 VA hypertension examination above noted that the Veteran had his blood pressure read on December 3, 2012, which was 140/118; on February 6, 2013 (the day after the end of the period on appeal) his blood pressure read 160/110. In any event, during that approximately two-month duration, the Veteran's hypertension did not show that his diastolic blood pressure predominantly 110 or more, or a systolic blood pressure predominantly 200 or more. Therefore, the claim for a rating greater than 10 percent from December 3, 2012 to February 5, 2013, for hypertension, is denied. The preponderance of the evidence is again against the claim. 3. Entitlement to a TDIU Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a)(2). As noted above, the issue of entitlement to a TDIU was raised as part and parcel of the claims for higher rating for the Veteran's service-connected chronic kidney disease and hypertension disabilities. See Rice, 22 Vet. App. at 447 (2009). In an April 2018 rating decision, the RO granted entitlement to a TDIU, effective August 4, 2016. As noted in the introduction and in the May 2019 Board remand, given that appeal period begins prior to this date because the issue of entitlement to a TDIU is part and parcel of the increased ratings claims, this decision did not grant the full benefit sought, and the Board will therefore address the issue of entitlement to a TDIU prior to August 4, 2016. The Veteran is service-connected for hyperthyroidism, rated as 10 percent from August 16, 2002, 60 percent from August 4, 2016, and 100 percent from January 16, 2018; chronic kidney disease, rated as 60 percent from February 5, 2013; unspecified depressive disorder, rated as 30 percent from November 26, 2012; exercise induced asthma, rated as 10 percent disabling from August 16, 2002 and 30 percent from August 4, 2016; gout, rated as 20 percent disabling from August 4, 2016; and hypertension, rated as noncompensable (zero percent) from August 16, 2002 and 10 percent from December 12, 2012 to February 5, 2013. Thus, beginning February 5, 2013, the Veteran had a combined rating higher than 70 percent throughout the appeal period and meets the minimum schedular requirements for TDIU on a schedular basis prior to August 4, 2016. 38 C.F.R. § 4.16(a). The Veteran has also submitted a VA Form 21-8940 indicating that he last worked on December 11, 2013, and that his kidney disease and hypothyroidism then prevented him from maintaining gainful employment. The Board therefore finds that the appeal period to be considered is from December 11, 2013 until August 3, 2016. A January 2013 VA mental disorders examination noted that the Veteran could only find contract work during the prior three months before being put on a leave of absence due to an altercation and has since been laid off. He stated that the Veteran's service-connected depressive disorder created work-related conflicts and the Veteran desired social isolation. The October 2013 VA examination noted that the Veteran reported that his ER-admission related to hypertension and his high blood pressure prevented him from working. Social Security Administration (SSA) records dated in December 2014 reflect that the Veteran stopped working due to asthma, high blood pressure, migraines and kidney issues. The SSA records dated in October 2017 also reflect that the Veteran was found disabled since November 1, 2014 due to service-connected hypothyroidism, service-connected chronic kidney disease-stage 3, service-connected hypertension, service-connected depressive disorder, service-connected gout as well as migraine headaches, sleep apnea, obesity, and paroxysmal atrial fibrillation. The records reflect that the vocational expert found that there were no jobs in the national economy that the Veteran could perform based on his age education, work experience, and residual functional capacity. Additionally, it was determined that his acquired job skills did not transfer to other occupations outside of manual labor. The expert found that the Veteran was unable to perform any past relevant work. Upon review of the evidence of record, the Board finds that a TDIU is warranted for this earlier period. The Veteran's record indicates that he has a high school diploma and two years of college. The Veteran reported that he is unable to sustain gainful employment due to his physical and mental limitations. These statements are competent and credible. Furthermore, the record contains numerous opinions regarding the Veteran's service-connected disabilities impacting his ability to work. Although the Veteran has a level of education that would enable him to perform sedentary work, SSA reports reflect that the Veteran is unable to perform even sedentary work. Multiple opinions revealed that the Veteran could not perform any physical type of labor due to his service-connected hypertension and kidney disease. Moreover, his service-connected depressive disorder was noted to make work in a social environment very difficult. Based on the medical examinations and opinions, the Veteran's statements, and his educational and occupational history, the Board finds that the Veteran is unemployable due to his service-connected disabilities. Therefore, entitlement to a TDIU prior to August 4, 2016 is warranted. 38 C.F.R. § 4.16(a). Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.