Citation Nr: 21041762 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-46 949 DATE: July 10, 2021 ORDER A disability rating greater than 60 percent for chronic renal disease with hypertension is denied. An effective date earlier than March 31, 2014 for the grant of service connection for chronic renal disease with hypertension is denied. FINDINGS OF FACT 1. The Veteran's chronic renal disease with hypertension has not manifest in 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. The claim for service connection for chronic renal disease with hypertension was filed on March 31, 2014. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 60 percent for chronic renal disease with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.115, 4.115a, Diagnostic Code (DC) 7534. 2. The criteria for an effective date earlier than March 31, 2014, for the grant of service connection for chronic renal disease with hypertension have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army with active duty from September 1988 to November 1996 and from July 1997 to October 2009. His service decorations include the Global War on Terrorism Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. The Board remanded the claims in January 2021 to obtain medical records in accordance with a July 2020 Joint Motion for Remand issued by the United States Court of Appeals for Veterans Claims. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's chronic renal disease with hypertension was assigned a 60 percent rating as of his January 2015 grant of service connection under DC 7534, which states that any renal involvement associated with diabetes is to be rated as renal dysfunction under 38 C.F.R. § 4.115a. 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 assigned when renal dysfunction requires regular dialysis; or when anything more than sedentary activity is precluded persistent edema or albuminuria, BUN more than 80mg, or creatinine more than 8mg. A 100 percent can also be assigned when there is markedly decreased kidney or other organ function, especially cardiovascular. The Veteran underwent a VA examination in January 2015. This exam found that the Veteran's BUN level was 22mg and his creatinine was 1.6. There was no noted lethargy, weakness, anorexia, weight loss, or limitation of exertion. Further, the Veteran's medical records noted creatinine levels of 1.1mg, 1.4mg, 1.3, mg, and 1.4mg in January 2021, July 2020, August 2019, and July 2018 respectively. Additionally, the Veteran's medical records note BUN levels of 14mg, 14mg, 14mg, and 16mg in January 2021, July 2020, August 2019, and July 2018 respectively. These records also note BUN levels and creatinine levels in July 2017, May 2016, September 2015, July 2015, January 20156, January 2014, July 2013, June 2013, August 2012, January 2012, November 2011, August 2011, December 2010, October 2010, September 2010, August 2010 and December 2009. Of these readings the Veteran recorded his highest BUN and creatinine levels in July 2015 at 23mg and 1.6mg respectively. These records are silent for notations of generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Veteran does not require regular dialysis. Based on the foregoing, there is no evidence in the record which supports a rating higher than 60 percent for the Veteran's chronic renal disease with hypertension. The medical findings of the Veteran's VA medical records and VA examinations are clear and show that the Veteran's chronic renal disease with hypertension did not have clinical findings necessary to support a rating higher than currently assigned. The Board notes that the Veteran and his representative have not identified or introduced any evidence which would support higher ratings. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date Section 5110(a), Title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection" will be the date of receipt of the claim or the date entitlement arose, whichever is the later." The Veteran filed a statement demonstrating his intent to file a claim for chronic renal disease with hypertension on March 31, 2014. The Veteran formally filed a claim in August 2014, preserving the March 31, 2014 date of the informal claim. The record does not show that the Veteran filed a claim for service connection for chronic renal disease with hypertension prior to that date. To the extent that the Veteran has argued that his chronic renal disease with hypertension existed prior to March 31, 2014, including the elevated creatinine levels noted in January 2012, this is not a valid basis for an earlier effective date. Here, the law and regulations are clear: the effective date of the grant of service connection will be the date the claim was received by VA or the date entitlement arose, whichever is later. Here, the Board acknowledges that the Veteran was diagnosed with chronic renal disease with hypertension prior to March 2014. However, the fact remains that the Veteran's initial claim for entitlement to service connection for a chronic renal disease was received by VA on March 31, 2014. Thus, the later of the two dateshere, the date the claim was received by VAis the proper effective date for the grant of service connection. The law on this matter is clear, and VA is bound by it. Therefore, the earliest possible effective date for the award of service connection for chronic renal disease with hypertension is March 31, 2014, in accordance with 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2). (Continued on the next page) For these reasons, an earlier effective date for the grant of service connection for chronic renal disease with hypertension is not warranted. There is no doubt to be resolved; the claim is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.