Citation Nr: 0005883	
Decision Date: 03/03/00    Archive Date: 03/14/00

DOCKET NO.  95-28 939	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUE

Entitlement to an evaluation in excess of 30 percent for 
residuals of a kidney replacement.  


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. M. Fogarty, Associate Counsel


INTRODUCTION

The veteran retired in February 1978 after more than 19 years 
of active service.

In a December 1997 decision, the Board of Veterans' Appeals 
(Board) remanded the issue of entitlement to an evaluation in 
excess of 30 percent for the residuals of a kidney transplant 
to the Department of Veterans Affairs (VA) Los Angeles, 
California Regional Office (RO) for additional development of 
the record.  It appears that the requested development has 
been completed to the extent possible.  Thus, the case has 
now been returned to the Board for appellate consideration.

In the December 1997 remand, the Board noted that a formal 
claim for a total rating based on individual unemployability 
was filed in August 1995.  The issue of entitlement to 
individual unemployability was initially adjudicated by the 
RO in a December 1995 rating decision.  The veteran was 
notified of the December 1995 decision and provided with a 
supplemental statement of the case in January 1996.  The 
supplemental statement of the case informed the veteran that 
he must respond within 60 days to perfect his appeal as to 
any new issues not included in any prior statement of the 
case or supplemental statement of the case.  A VA Form 9 was 
provided with the supplemental statement of the case.  A 
review of the subsequent record shows that the issue of 
entitlement to individual unemployability was not addressed 
in any prior statement of the case or supplemental statement 
of the case.  The record further reveals that the veteran did 
not respond to the January 1996 supplemental statement of the 
case within 60 days, nor has a substantive appeal as to the 
issue of entitlement to individual unemployability been filed 
at any time.  Thus, that issue is not properly before the 
Board for appellate consideration.  




FINDINGS OF FACT

1.  The RO has obtained all relevant evidence necessary for 
an equitable disposition of the veteran's appeal.

2.  Residuals of a kidney transplant consist of diastolic 
pressures of predominantly 100 requiring continuous 
medication for control, tremors, headaches, and fatigue, 
without evidence of edema, decrease in kidney function, 
anorexia, weight loss, general poor health, or requirements 
of regular dialysis.



CONCLUSION OF LAW

The criteria for an evaluation in excess of 30 percent for 
residuals of a kidney transplant have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.115a, 
Diagnostic Code 7531 (1992), 4.104, 4.115a, 4.115b, 
Diagnostic Code 7531 (1999).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

In a November 1982 rating decision, the RO granted 
entitlement to service connection for chronic 
glomerulonephritis, evaluated as 10 percent disabling, 
effective June 2, 1978.  In a February 1987 rating decision, 
the RO granted entitlement to service connection for 
hypertension as secondary to chronic glomerulonephritis.  The 
RO assigned a combined evaluation of 30 percent, effective 
January 7, 1987.  

A private medical report dated in March 1993 notes that the 
veteran sustained injuries as a result of an automobile 
accident in October 1992.  The veteran complained of neck 
pain, mid back pain, low back pain, headaches, dizziness, 
loss of energy, difficulty sleeping, and pain in both legs 
following the accident.  It was opined that the impact of the 
automobile collision produced a cervical-thoracic 
acceleration-deceleration injury to the head and upper mid 
back.  It was also noted that the veteran's low back was 
strained during the accident causing severe muscular spasm 
and ligamental strain

In a January 1994 rating decision, the RO granted a total 
evaluation based on a kidney transplant with convalescence, 
effective from March 22, 1993.  The RO also determined that a 
30 percent evaluation would be effective from March 1, 1995.  

Private treatment records dated in 1994 and 1995 reflect 
complaints of headaches, back pain, and an inability to 
concentrate.  Treatment records dated in 1994 reflect 
notations of no edema.  Assessments of depression, migraine 
headaches, back strain, lumbar spondylosis and levoscoliosis 
were noted.

A private medical report dated in March 1994 reflects 
complaints of persistent migraine headaches, severe fatigue, 
and an inability to get through the workday.  The veteran 
also complained of frequent tremors, low back pain, and 
blurred vision.  It was noted that tremors were a common side 
effect of Cyclosporine.  The etiology of the veteran's 
blurred vision was noted as unclear.  Hypertension secondary 
to renal disease was also noted.  A review of the systems 
noted no ankle edema, no urinary frequency, nocturia, flank 
pain, or gross hematuria.  Weight was noted as stable with a 
good appetite.  Occasional mild dysuria was noted.  Blood 
pressure was noted as 150 systolic and 90 diastolic.  
Impressions of end-stage renal disease secondary to 
membranous glomerulonephritis, status post chronic dialysis, 
status post successful cadaveric renal transplant, low back 
pain probably due to discogenic disease versus degenerative 
arthritis, and fatigue secondary to immunosuppressive therapy 
were noted.  

The physician opined that the veteran's renal failure was now 
well compensated with an adequately functioning kidney.  
However, the immunosuppressant drugs with their side effects, 
as well as an investigational drug, that the veteran was 
taking caused him significant morbidity, including migraine 
headaches, increased tremulous, lethargy, and increased 
neuromuscular activity.  It was noted that the veteran 
probably would not recover from this since he would need to 
remain on immunosuppressive drugs for an indefinite period.  
Finally, the physician opined that the veteran was limited 
from full-time employment and his application for retirement 
should be approved.  

Upon VA examination dated in March 1995, it was noted that 
the veteran received dialysis up until January 1993 when he 
underwent renal transplantation and subsequent 
immunosuppression.  It was also noted that diagnostic testing 
indicated the restoration of excellent renal function and a 
well functioning transplant.  A history of hypertension and 
spondylosis and spondylolisthesis of the lumbosacral spine 
was also noted.  Physical examination revealed a blood 
pressure of 150 systolic and 86 diastolic.  No peripheral 
edema was noted in the lower extremities.  Cerebellar and 
extrapyramidal examinations were within normal limits.  A 
conclusion of status post renal transplant with renal 
function currently within normal limits, a history of lumbar 
spondylosis and spondylolisthesis with limited low back 
motion, and hypertension was noted.  

A private medical statement dated in May 1995 reflects that 
the veteran was being followed for transplant kidney 
problems.  It was also noted that the veteran suffered from 
hypertension and recently experienced problems with 
depression.  The physician reported the veteran was taking a 
wide range of medications, including Prednisone, Imuran, 
Dilacor, Cyclosporine, Procardia, fish oil tablets, and 
Mevacor, many of which have some side effects.  The physician 
opined the veteran was doing reasonably well in spite of his 
very complicated and difficult medical problems.  

A private medical report dated in July 1995 reflects that the 
veteran continued to do well from his kidney transplant and 
his renal function was good.  It was noted that the veteran 
continued to suffer from low back pain due to discogenic disc 
disease and had been suffering from heel pain, which was 
probably arthritic or due to heel spurs.  It was also noted 
that the veteran was otherwise doing well.  Finally, it was 
noted that the veteran was currently working as a realtor.

At his August 1995 RO hearing, the veteran testified that his 
headaches commenced right after the transplant of his new 
kidney.  (Transcript, page 2).  The veteran stated that he 
had not been told by a physician that he had nephritis, but 
he knew he had it.  The veteran testified that he suffered 
from continuous headaches, watery eyes and blurred vision.  
(Transcript, page 3).  The veteran also stated that he had 
blood in his urine.  (Transcript, page 5).  The veteran 
reported walking about a mile and a half, bicycling, and 
swimming, but also stated he was always fatigued.  
(Transcript, pages 6-7).  He reported his appetite as good.  
(Transcript, pages 7-8).  

Upon VA examination of the eyes dated in September 1995, a 
history of broken glass in his eye in 1961 or 1962 was noted.  
Diagnoses of refractive error with presbyopia, status post 
ruptured globe in the left eye with iris laceration and 
peripheral corneal scar, and an early cataract, not visually 
significant, were noted.  

Upon VA nephritis examination dated in October 1995, the 
veteran's blood pressure was noted as within normal limits at 
112 systolic and 68 diastolic.  Slight Cushingoid features 
were noted.  The examiner noted no peripheral edema in the 
lower extremities.  Babinski's signs were absent and 
cerebellar and extrapyramidal neurologic examinations were 
noted as normal.  A conclusion of status post renal 
transplant in 1993 preceded by hemodialysis and a history of 
microscopic hematuria was noted.  It was also noted that he 
had end stage renal disease presumed secondary to chronic 
pyelonephritis.  

At his July 1997 hearing before a member of the Board, the 
veteran testified that at his last medical appointment a 
month and a half earlier, he had a normal creatinine level.  
(Transcript, page 4).  The veteran reported experiencing 
migraine headaches every day, which required him to sit down.  
He also reported taking Tylenol, but it did not always work.  
(Transcript, page 5).  The veteran testified that sometimes 
the headaches were so severe they caused vomiting and 
photophobia.  The veteran also stated he felt more fatigued 
after experiencing a migraine headache.  (Transcript, page 
6).  The veteran reported problems with fatigue that required 
him to stop and rest frequently.  (Transcript, page 7).  The 
veteran also reported edema once a week, watery eyes, back 
pain, and vision problems.  (Transcript, pages 10-11, 13-14).  
The veteran testified that he felt able to work in a limited 
capacity.  (Transcript, page 15).  

Upon VA genitourinary examination dated in February 1998, the 
veteran reported chronic fatigue, gum trouble, and back pain.  
It was also noted that the veteran had blood sugar elevations 
and was being treated with oral medication on a daily basis.  
Final diagnoses of a history of end stage renal disease, 
followed by hemodialysis and a cadaveric renal transplant 
currently treated with immunosuppressive therapy, chronic low 
back pain possibly secondary to the use of chronic steroid 
treatment, a history of hypertension controlled with 
medication, and diabetes were noted.  

A VA examination report dated on February 23, 1999 reflects 
the veteran reported experiencing swelling of his gums 
subsequent to his kidney transplant and two surgeries.  The 
details of those surgeries were noted as unknown.  The 
veteran complained of fatigue, blurry vision, watery eyes, 
dizziness, and nervousness.  The veteran denied weight loss 
or anorexia.  The veteran reported his symptoms as constant.  
It was noted that the veteran was taking Cyclosporine with 
good response except for gum disease and fatigue, Prednisone 
with good response except for fatigue, and Dilacor with good 
response except for headaches.  Blood pressure was noted as 
180/90 standing, 182/100 sitting, and 180/88 lying down.  
Physical examination revealed no evidence of cyanosis, 
clubbing, edema or varicose veins.  Diagnoses of residual of 
renal transplant, poorly controlled hypertension on 
medication, diabetes mellitus, and status-post AV graft shunt 
procedure in the right forearm were noted.  The examiner 
noted that a specific diagnosis for a gum condition could not 
be made.  

A VA orthopedic examination dated in February 1999 reflects 
the veteran complained of low back pain.  The veteran denied 
any specific history of injury to his low back.  Upon lumbar 
spine examination, the examiner noted no evidence of 
splinting or spasm, no evidence or tenderness, weakness, or 
painful motion.  Radiographs of the lumbar spine showed it to 
be normal.  The examiner opined the veteran had subjective 
complaints of low back pain only with no evidence of 
radicular findings.  The examiner also noted there was no 
evidence of intrinsic bony or neurological abnormality with 
regard to the lumbar spine.  The examiner opined that he saw 
no basis on which to relate the veteran's lumbar spinal 
condition to his kidney implantation surgery.  The kidney was 
implanted from the anterior approach and there was no 
scarring on the posterior aspect anywhere near the spine.  
Finally, the examiner opined that he saw no basis on which to 
believe the veteran had any lumbar spinal residuals due to 
the transplant surgery.

Upon VA examination dated on February 26, 1999, it was noted 
that the veteran felt he had mild weakness.  A normal 
appetite with some weight gain was also noted.  The report 
reflects the veteran was voiding with a good stream, 
intermittent hesitancy, and occasional diminution of his 
stream.  Nocturia of 5-6 times per night as well as urgency 
with urge incontinent episodes twice a week was noted.  An 
impression of status post cadaveric renal transplantation, 
doing generally well with some irritative voiding symptoms of 
frequency, urgency, and nocturia was noted.  It was also 
noted that these voiding symptoms did not appear to be 
related to the kidney transplant.  The examiner stated there 
was no evidence that the veteran was unable to work as a 
result of his kidney transplant.  In a March 1999 addendum to 
the examination report, the examiner noted that the veteran's 
medical records had been reviewed and the only change in 
information from the original report was that the veteran's 
end-stage renal failure appeared to be due to chronic 
pyelonephritis from the records.  

Upon VA mental examination dated in February 1999, the 
examiner opined the veteran had a mood disorder because of 
his medical condition.

A VA eye examination dated in February 1999 reflects 
diagnoses of status post foreign body injury to the left eye 
without any ocular sequela, early cataract of the left eye 
not interfering with vision at that time, no diabetic 
retinopathy, bilateral ptosis causing mild superior visual 
field defect bilaterally, and developmental astigmatism 
bilaterally with good vision with proper correction.  

In a September 1999 rating decision, the RO granted 
entitlement to a mood disorder as secondary to the veteran's 
service-connected renal transplant, evaluated as 10 percent 
disabling, effective February 25, 1999.

Law and Regulations

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. § Part 4 (1999).  The percentage ratings contained 
in the Rating Schedule represent, as far as can be 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. 
§ 4.1 (1999).  Separate diagnostic codes identify the various 
disabilities.  In determining the disability evaluation, VA 
has a duty to acknowledge and consider all regulations which 
are potentially applicable based upon the assertions and 
issues raised in the record and to explain the reasons and 
bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. 
App. 589 (1991).  These regulations include 38 C.F.R. §§ 4.1 
and 4.2 (1999) which require the evaluation of the complete 
medical history of the claimant's condition.  These 
regulations operate to protect claimants against adverse 
decisions based on a single, incomplete, or inaccurate 
report, and to enable VA to make a more precise evaluation of 
the level of the disability and of any changes in the 
condition.  Schafrath, 1 Vet. App. at 593-94 (1991).  

Where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, the present level of disability is of primary concern.  
Although a rating specialist is directed to review the 
recorded history of a disability in order to make a more 
accurate evaluation, the regulations do not give past medical 
reports precedence over current findings.  See Francisco v. 
Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999).

Kidney transplants are rated pursuant to 38 C.F.R. § 4.115b, 
Diagnostic Code 7531 (1999).  Following a kidney transplant, 
a 100 percent evaluation is warranted.  Thereafter, a kidney 
transplant is rated on residuals as renal dysfunction with a 
minimum rating of 30 percent.  The regulation notes that the 
100 percent evaluation should be assigned as of the date of 
hospital admission for transplant surgery and shall continue 
with a mandatory VA examination one year following the 
hospital discharge.

Renal dysfunction manifested by 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 warrants a 30 
percent disability evaluation.  A 60 percent rating is 
warranted for renal dysfunction manifested by constant 
albuminuria with some edema; or definite decrease in kidney 
function, or hypertension at least 40 percent disabling under 
diagnostic code 7101.  Renal dysfunction manifested by 
persistent edema and albuminuria with BUN of 40 to 80 mg%; or 
creatinine of 4 to 8 mg%, or generalized poor health 
characterized by lethargy, weakness, anorexia, weight loss, 
or limitation of exertion warrants an 80 percent evaluation.  
A 100 percent evaluation 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
80 mg%, or markedly decreased function of kidney or other 
organ systems, especially cardiovascular.  See 38 C.F.R. 
§ 4.115a.

Hypertension is rated pursuant to 38 C.F.R. § 4.104, 
Diagnostic Code 7101.  Hypertension manifested by a diastolic 
pressure of predominantly 100 or more, or a systolic pressure 
predominantly 160 or more, or an individual with a history of 
diastolic pressure predominantly 100 or more who requires 
continuous medication for control warrants a 10 percent 
evaluation.  A diastolic pressure predominately 110 or more, 
or systolic pressure of predominantly 200 or more warrants a 
20 percent evaluation.  Hypertension manifested by diastolic 
pressure of 120 or more warrants a 40 percent evaluation.  A 
60 percent evaluation is warranted for diastolic pressure of 
130 or more.  Hypertension or isolated systolic hypertension 
must be confirmed by readings taken two or more times on at 
least three different days.  See 38 C.F.R. § 4.104, 
Diagnostic Code 7101.  

The United States Court of Appeals for Veterans Claims (known 
as the United States Court of Veterans Appeals prior to March 
1, 1999) (hereinafter, "the Court") has held that where the 
law or regulation changes after the claim has been filed, but 
before the administrative or judicial process has been 
concluded, the version most favorable to the veteran applies 
unless Congress provided otherwise or permitted the VA 
Secretary to do otherwise and the Secretary did so.   Karnas 
v. Derwinski, 
1 Vet. App. 308 (1991).  The regulations governing kidney 
transplants and renal dysfunction were revised effective 
February 17, 1994 and October 8, 1994.  As the veteran filed 
his claim prior to those dates, the Board must consider the 
prior regulations.

Under the prior regulations, a kidney transplant warranted a 
100 percent evaluation for two years following transplant 
surgery.  Thereafter, a kidney transplant should be rated for 
residual symptoms under diagnostic code 7500 with a minimum 
rating of 30 percent.  See 38 C.F.R. § 4.115a, Diagnostic 
Code 7531 (1992).  Pursuant to diagnostic code 7500, the 
removal of one kidney with the other functioning normally 
warrants a 30 percent evaluation.  The removal of one kidney 
with mild to moderate nephritis, infection, or pathology of 
the other warrants a 60 percent evaluation.  A 100 percent 
evaluation is warranted for the removal of one kidney with 
severe nephritis, infection, or pathology of the other.  See 
38 C.F.R. § 4.115a, Diagnostic Code 7500 (1992).

Analysis

Following a thorough review of the evidence of record, the 
Board concludes that an evaluation in excess 30 percent is 
not warranted for residuals of a kidney replacement.  

Although the veteran has testified that he experiences low 
back pain and blurry vision, these symptoms have not been 
shown by competent medical evidence to be residuals of the 
veteran's kidney transplant.  In fact, upon VA examination 
dated in February 1999, the examiner found no basis on which 
to believe the veteran had any lumbar spinal residuals due to 
the transplantation surgery.  The Board is cognizant of the 
February 1998 VA genitourinary examination report which 
reflects a diagnosis of chronic low back pain possibly 
secondary to the use of chronic steroid treatment.  However, 
the Court has routinely found statements about the 
possibility of a nexus to be speculative and inconclusive.  
See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Perman 
v. Brown, 5 Vet. App. 237, 241 (1993); Obert v. Brown, 5 Vet. 
App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 
230 (1992).  Additionally, the record is silent for any 
competent medical evidence establishing that the veteran's 
blurry vision is the result of his kidney transplantation.  
VA examinations showed evidence of a cataract, but did not 
find it to be a residual of the kidney transplantation.  
Finally, the Board notes that the medical evidence of record 
reflects the veteran suffered from low back pain, as well as 
headaches, prior to his kidney transplant as a result of an 
automobile accident in October 1992.

The veteran also contends that he suffers from hypertension, 
headaches, edema, and fatigue as a result of his kidney 
transplantation.  The Board notes that although the veteran 
can attest to his own symptomatology, as a layperson he is 
not competent to offer medical opinions regarding diagnoses 
or causation.  Espiritu v. Derwinski, 
2 Vet. App. 492 (1992).  The medical evidence of record is 
silent for notations or findings of edema.  The highest blood 
pressure readings of record were noted in the February 23, 
1999 VA examination report.  However, under 38 C.F.R. 
§ 4.104, Diagnostic Code 7101, these findings would warrant 
no more than a 10 percent disability evaluation.  

The record reflects that the veteran's transplanted kidney is 
functioning well and is silent for any competent medical 
evidence of nephritis, infection, or pathology.  The record 
is further silent for competent medical evidence of any 
decrease in kidney function, constant albuminuria with some 
edema, anorexia, weight loss, persistent edema with BUN 40 to 
80 mg%, creatinine levels of 4 to 8 mg%, renal dysfunction 
requiring regular dialysis or precluding more than sedentary 
activity because of persistent edema and albuminuria or BUN 
of more than 80 mg%, creatinine more than 8 mg%, or markedly 
decreased function of the kidney or other organ systems, 
especially cardiovascular.  Thus, in the absence of competent 
medical evidence of the aforementioned symptomatology, an 
evaluation in excess of 30 percent is not warranted.  

The Board notes that the percentage ratings under the 
Schedule are representative of the average impairment in 
earning capacity resulting from diseases and injuries.  
38 C.F.R. § 4.1 (1999) specifically sets out that 
"[g]enerally, 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."  In the 
present case, there is no evidence the veteran's residuals of 
a kidney transplant result in frequent periods of 
hospitalization.  Accordingly, consideration of 38 C.F.R. 
§ 3.321(b)(1) is not warranted in the absence of an 
exceptional or unusual disability picture.  



ORDER

An evaluation in excess of 30 percent for residuals of a 
kidney transplant is denied.  



		
	John E. Ormond, Jr.
	Member, Board of Veterans' Appeals