Citation Nr: 22014482 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 13-34 306 DATE: March 14, 2022 ORDER Entitlement to a compensable disability rating for service-connected polycystic kidney disease is denied. FINDING OF FACT The evidence of record does not show that the Veteran's polycystic kidney disease results in constant or recurring albumin with hyaline and granular casts or red blood cells; transient or slight edema; or hypertension with diastolic pressure predominantly 100 or more or systolic pressure predominately 160 or more. CONCLUSION OF LAW The criteria for a compensable disability rating for service-connected polycystic kidney disease have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.115, 4.115b, Diagnostic Code 7533. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2019, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's polycystic kidney disease has been rated under 38 C.F.R. § 4.115a, Diagnostic Code 7533. Diagnostic Code 7533 directs that cystic disease of the kidneys are to be rated as renal dysfunction. Of note, effective November 14, 2021, VA revised the criteria for evaluating disorders of the genitourinary system. See Schedule for Rating Disabilities; The Genitourinary Diseases and Conditions, 86 Fed. Reg. 54081, 54089 (Sept. 30, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to November 14, 2021, and both the old and new rating criteria from November 14, 2021. The criteria that is more favorable to the Veteran will be applied. Under the old criteria prior to November 14, 2021, for rating renal dysfunction, a noncompensable rating is warranted when there is albumin and casts with a history of acute nephritis, or hypertension is noncompensable under Diagnostic Code 7101. 38 C.F.R. § 4.115a. A 30 percent rating is warranted for albumin 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 Diagnostic Code 7101. A 60 percent rating is warranted where there is 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 requires 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. A 100 percent evaluation is assigned 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 80 mg percent, or creatinine more than 8 mg percent, or markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115a. (Albuminuria is also known as proteinuria and is the presence of an excess of serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995).) Diagnostic Code 7101 provides ratings for hypertensive vascular disease. 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. Effective November 14, 2021, a noncompensable rating is warranted for glomerular filtration rate (GFR) from 60 to 89 mL/min/1.73 m2 and either recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, or granular casts for at least 3 consecutive months during the past 12 months; or, GFR from 60 to 89 mL/min/1.73 m2 and structural kidney abnormalities (cystic, obstructive, or glomerular) for at least 3 consecutive months during the past 12 months; or, GFR from 60 to 89 mL/min/1.73 m2 and albumin/creatinine ratio (ACR) 30 mg/g for at least 3 consecutive months during the past 12 months. A 30 percent evaluation is assigned for chronic kidney disease with GFR from 45 to 59 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. A 60 percent evaluation is assigned for chronic kidney disease with GFR from 30 to 44 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. An 80 percent evaluation is assigned for chronic kidney disease with GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. A 100 percent evaluation is assigned for chronic kidney disease with GFR less than 15 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months; or requiring regular routine dialysis; or eligible kidney transplant recipient. An accompanying Note indicates that GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR will be accepted for evaluation purposes when determined to be appropriate and calculated by a medical professional. The Veteran was afforded a VA genitourinary examination in April 2010. It was noted that the Veteran had undergone surgery for an acute blocked ureter on the left side in 1979 or 1980. No urinary medication was being taken. He denied flow problems, dysuria, or any recent need for antibiotics for the urinary tract system. Incontinence or needing pads was not found. Activities of daily living were not affected. There was no need for renal dialysis, and no erectile dysfunction problems or peripheral edema were found. Essential hypertension was indicated. Urine showed glycosuria, a trace of blood and no bacteria. The VA examiner noted that there was no renal dysfunction found. Normal BUN and creatinine were found. A diagnosis of benign left renal cysts was provided. A May 2013 VA treatment record shows that the Veteran denied dysuria and hematuria. It was also noted that blood pressure was good. A January 2014 VA medical letter noted that the Veteran's kidney and urinalysis were normal. During a February 2020 VA kidney conditions examination, it was noted that the Veteran experienced some discomfort in the left flank area 2-3 times per day, which could last 5-20 seconds, then resolve. The Veteran reported that this was triggered by movements of his back. The pain was described as a deep ache. He occasionally felt mild discomfort in that area when urinating. No recent hematuria was noted. Medication was not being taken for the condition. Renal dysfunction was not found. Calculi was noted in the kidney. No recurrent stones or signs or symptoms of urolithiasis was shown. A review of laboratory results from September 2018 showed normal BUN, creatinine, and EGFR. Urinalysis results were also found to be normal. A diagnosis of cystic kidney disease was provided. A review of blood pressure readings found in the VA treatment records shows that in February 2013, the Veteran's blood pressure reading was noted as 138/73. In June 2014, a blood pressure reading was 141/87. In April 2015, a blood pressure reading of 121/78 was shown. In September 2015, a blood pressure reading of 138/82 was provided. In August 2016, a blood pressure reading of 145/90 was provided. In June 2017, a blood pressure reading of 142/84 was shown. In April 2018, a blood pressure reading of 120/70 was noted. In July 2020, a blood pressure reading of 149/108 was provided. In October 2021, a blood pressure reading of 124/84 was shown. There is no indication of a history of diastolic pressure predominantly 100 or more requiring continuous medication for control during the pendency of the appeal, just the one July 2020 reading. Based on the foregoing, the Board finds that a compensable disability rating is not warranted during the entire period on appeal. The medical evidence has not shown that the Veteran has experienced any renal insufficiency, or albumin noted as constant or recurring with hyaline and granular casts or red blood cells, or any transient or slight edema. In addition, the evidence of record is negative for any evidence showing that the Veteran's blood pressure readings support a compensable evaluation. Further, the evidence of record does not show results which would warrant a higher rating based on the November 14, 2021 criteria for renal dysfunction. 38 C.F.R. § 4.115a. While the Board is sympathetic to the difficulties presented by the Veteran's service-connected polycystic kidney disease, the evidence of record does not support a compensable rating at this time. Neither the objective findings shown on examination nor the subjective reports from the Veteran are more consistent with a higher evaluation. The Board finds that the evidence is persuasively against the claim for a compensable disability rating for the Veteran's service-connected polycystic kidney disease, there is no doubt to be resolved, and an increased rating is not warranted. See 38 U.S.C. § 5107(b). The Board notes that neither the Veteran nor his representative has raised any further issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show, that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.