Citation Nr: 21041640 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-01 300 DATE: July 9, 2021 ORDER Entitlement to a uniform rating of 60 percent for residuals of kidney cancer, status post left nephrectomy, is granted. Entitlement to a compensable rating for residuals of bladder cancer is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's kidney cancer residuals have manifested as removal of one kidney with definite decrease in kidney function. 2. Throughout the period on appeal, the Veteran's bladder cancer residuals have been asymptomatic, and his voiding dysfunction is due to non-service-connected benign prostatic hyperplasia (BPH). CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 60 percent rating of renal dysfunction due to residuals of kidney cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.14, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. For the entire period on appeal, the criteria for a compensable rating for residuals of bladder cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.14, 4.115a, 4.115b, DCs 7515 7517, 7529. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from September 1957 to March 1958, to include over 30 days spent at Camp Lejeune. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2017 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a June 2020 video hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. The Board previously remanded these issues to the AOJ for further development in October 2020. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating 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 military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reevaluation in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided in the rating schedule, the disabilities arising from a single disease entity are to be rated separately as are all other disabling conditions. 38 C.F.R. §4.25(b). However, the evaluation of the same disability under various diagnoses, a practice called pyramiding, is to be avoided. 38 C.F.R. §4.14. The rationale for the prohibition on pyramiding is that the rating schedule may not be employed as a vehicle for compensating a claimant twice for the same symptomatology; such a result would overcompensate the claimant for the actual impairment suffered. Id. Entitlement to an increased rating for residuals of kidney cancer The Veteran's medical records indicate he was diagnosed with cancer of the kidney and underwent successful nephrectomy of the left kidney in 2001. In an October 2020 decision, the Board granted entitlement to service connection for residuals of kidney cancer effective December 27, 2013 and remanded the issue for a new VA examination and the possible implication of staged ratings. After completing the examination, the AOJ issued an April 2021 rating decision granting a 30 percent rating for kidney cancer residuals from the date of service connection, a 60 percent rating from March 26, 2014, a 30 percent rating from April 20, 2018, a 60 percent rating from June 14, 2018, a 30 percent rating from August 23, 2018, and a 60 percent rating from September 19, 2018. The Diagnostic Codes used to rate the residuals of kidney cancer include DC 7500, which provides for a minimum evaluation of 30 percent for removal of one kidney, or in case of more severe symptoms as renal dysfunction under 38 C.F.R. § 4.115a. 38 C.F.R. § 4.115b. The remaining DCs indicate that the residuals should be rated as renal or voiding dysfunction, whichever is predominant. Id. The Veteran's voiding dysfunction will be discussed below in the bladder cancer section of this decision. When rating renal dysfunction, 38 C.F.R. § 4.115a provides for a 60 percent evaluation 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 evaluation requires 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 evaluation is available when the kidney is 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. Id. In this case, the Board finds that a uniform rating of 60 percent for kidney cancer residuals is warranted, as the Veteran has demonstrated a consistent decrease in kidney function throughout the period on appeal. In December 2019 private medical records, the Veteran's treating nephrologist noted that he had manifested stage III chronic kidney disease since at least 2011 with elevated creatinine and GFR levels that had remained relatively stable with minor fluctuations. A review of VA and private treatment records indicate that throughout the period on appeal the Veteran's creatinine, BUN and GFR levels have generally fluctuated between 1.32 and 1.6, 22 and 31, and 39 and 50, respectively. According to the National Kidney Foundation, normal creatinine, BUN and GFR levels for males in the Veteran's age range are .8 to .13, 8 to 20, and over 90 respectively, with a GFR rating under 60 indicating at least mild to moderate loss of kidney function. September 2017 private treatment records include lab work which estimates the Veteran's GFR at 39 as well as correspondence that states, "your kidney function is reduced." An April 2018 VA examiner noted a diagnosis of chronic renal disease, with abnormal creatinine, BUN and GFR readings and advised the Veteran to seek treatment with a nephrologist. June 2020 VA treatment records note the Veteran's diagnosis of stage III chronic kidney disease as well as a "usual GFR" of 40 to 45. The Veteran's treating nephrologist noted a current GFR of 49 in July 2020 correspondence, and a March 2021 VA examiner observed that the Veteran manifested chronic kidney disease in his remaining kidney as well as albuminuria noted by recent lab testing results. While one April 2018 VA treatment record notes both BUN and creatinine levels within the normal range, the Veteran has otherwise manifested levels indicating impairment of kidney function throughout the period on appeal. Additionally, both his treating nephrologist and VA clinicians have noted a diagnosis of stage III chronic kidney disease since at least 2011. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that he has manifested a definite decrease in kidney function throughout the period on appeal, warranting a uniform 60 percent rating for kidney cancer residuals. An alternative rating for kidney cancer residuals under voiding dysfunction would not benefit the Veteran, as the maximum available rating of 60 percent is the same awarded by this decision. The Board further finds that a rating in excess of 60 percent is not warranted in this case. The Veteran has not required dialysis, exhibited a persistent edema, or manifested BUN more than 80mg% or creatinine 4 to 8mg% at any point during the period on appeal. A June 2017 VA examination noted no functional limitations due to the Veteran's kidney disability and an April 2018 VA examiner noted a diagnosis of chronic renal disease but no other signs or symptoms of dysfunction. In December 2019 private medical records and July 2020 correspondence, the Veteran's treating nephrologist noted his stage III chronic kidney disease but stated that increased urinary frequency was his primary medical complaint. While the March 2021 VA examiner noted persistent albuminuria, there was no evidence of edema and creatine and BUN levels were 1.64 and 31, respectively. There is also no medical evidence of lethargy, weakness, anorexia, weight loss, or limitation of exertion caused by the Veteran's kidney cancer residuals. As such, a higher rating based on test results or generalized poor health is not warranted. 1. Entitlement to a compensable rating for residuals of bladder cancer The Veteran's treatment records indicate he was diagnosed and treated for bladder cancer in 1996. In the previous October 2020 decision, the Board granted entitlement to service connection for bladder cancer residuals effective December 27, 2013. The Board also instructed the AOJ to afford the Veteran an additional VA examination and obtain a medical opinion differentiating all effects related to his kidney and bladder disabilities. The examiner was asked to specifically identify whether the Veteran's reported symptoms of frequent and bloody voiding were attributable to either diagnosis. The AOJ was then instructed to rate any symptoms of the Veteran's bladder disability under DC 7517, which bases disability ratings on voiding dysfunction as listed in 38 C.F.R. § 4.115a. The Veteran's medical records include a December 1997 letter from his treating physician noting an elevated PSA and voiding difficulty due to BPH. During January 1998 TURP surgery to treat his BPH, low grade bladder cancer was identified and removed. January 1998 as well as February, June and December 1999 cystoscopies following the TURP noted no indications of recurrence of bladder cancer, and the Veteran denied voiding issues. He underwent an additional bladder biopsy in May 2003, which was negative for malignancy. Subsequent cystoscopies have all been negative for recurrence of bladder cancer. The Veteran reported for urinary discomfort in December 2013 and was diagnosed with BPH. A June 2017 VA examiner observed no indications of the recurrence of bladder cancer and noted the Veteran reported voiding dysfunction, which the examiner attributed to BPH. May 2019 private and VA treatment records indicate the Veteran complained of gross hematuria (blood in the urine), which both providers attributed to swelling in the prostate. November 2019 VA treatment records indicate the Veteran reported transitory gross hematuria, and the treating urologist provided a diagnosis of enlarged prostate and bladder neoplasm, noting testing was negative for malignancy and stating "bleed was felt to be likely prostate related. May and June 2020 cystoscopies were negative for malignancy. The Veteran reported intermittent gross hematuria at the June 2020 Board hearing, while June 2020 treatment records indicate he denied urinary hematuria, dysuria, urgency, frequency, retention, and hesitation to his treating nephrologist. In accordance with the October 2020 Board remand directives, the Veteran was afforded a VA urinary tract examination in March 2021. After thoroughly recounting the Veteran's medical history, to include his past treatment for BPH and bladder cancer, the examiner noted that the Veteran's bladder cancer was in remission and asymptomatic. The Veteran reported a voiding dysfunction which manifested as increased urinary frequency with daytime intervals between one and two hours as well as two nighttime awakenings to void, without obstructed voiding. The examiner stated that although the Veteran reported urinary frequency with gross hematuria, these symptoms were unrelated to his bladder cancer, which was in remission. The examiner reasoned that the available evidence of record, to include several urologist notes, indicate that these lower urinary tract symptoms are due instead to his BPH, and concluded that there were no residuals or symptoms attributable bladder cancer. The Board finds the March 2021 VA examiner opinion to be highly probative, as it is factually accurate, fully articulated and provides sound reasoning for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the examiner conducted a thorough review of the Veteran's medical history and cited to medical notes authored by the Veteran's treating physicians. The Board observes that there is no contradictory opinion of record. Therefore, the Board finds that a preponderance of the evidence indicates the Veteran's symptoms of voiding dysfunction are due to his non-service connected BPH, and not the residuals of his bladder cancer. As there are no symptoms attributable to the Veteran's bladder cancer during the appeal period, a compensable rating is not warranted. Finally, an alternative rating under a different DC is not appropriate, as 38 C.F.R. § 4.115b instructs that all DCs related to the bladder or genitourinary neoplasms be rated as either renal (discussed above) or voiding dysfunction. DCs 7515 7517, 7529. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.