BVA9508367 DOCKET NO. 91-22 734 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for glomerulonephritis with hypertension and azotemia, postoperative status renal transplant with a history of hemodialysis, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from August 1961 to November 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1990, rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to an increased rating for the veteran's service-connected glomerulonephritis with hypertension and azotemia, postoperative status renal transplant with a history of hemodialysis, and also denied entitlement to special monthly compensation. The notice of disagreement was received as to the increased rating issue in March 1990. The statement of the case as to the increased rating issue was sent to the veteran in May 1990. The substantive appeal as to the increased rating issue was received in June 1990. In June 1991, this case was remanded by letter in order to afford the veteran a personal hearing before a member of the Board. In a September 1991 letter, the veteran and his representative indicated that the veteran would be unable to attend the personal hearing before a member of the Board. In March and August 1992 decisions, the Board remanded this case to the RO for further development. In a February 1993 rating decision, the RO confirmed and continued the prior denials of an increased rating and entitlement to special monthly compensation. In a subsequent August 1993 decision,, entitlement to service connection for migraine headaches, cataracts, and an inguinal hernia, all secondary to service-connected glomerulonephritis with hypertension and azotemia, postoperative status renal transplant with a history of hemodialysis, were denied. The veteran was notified of the denial and of his procedural and appellate rights in a September 1993 letter. Since a notice of disagreement has not been received as to any of those issues, none of those issues is in appellate status. 38 U.S.C.A. § 7105 (West 1991). In his substantive appeal, the veteran also raised the issue of entitlement to service connection for heart murmurs secondary to service-connected glomerulonephritis with hypertension and azotemia, postoperative status renal transplant with a history of hemodialysis. Disposition of the veteran's claim for secondary heart disorder is not "inextricably intertwined" with the claim for an increased evaluation for his service-connected disorder as the alleged secondary heart disorder may be rated under a separate diagnostic code from the VA's Schedule for Rating Disabilities and symptoms pertinent to evaluation of each condition under relevant code differ. Kellar v. Brown, 6 Vet.App. 157, 160 (1994). Likewise, the veteran also appears to be raising entitlement to a total rating based on individual unemployability due to his service-connected disorder. Because the claim currently on appeal is one for an increased schedular rating, the additional claim for a total rating is not inextricably intertwined with the underlying claim. Holland v. Brown, 6 Vet.App. 443 (1994). The Board refers these two issues to the RO for appropriate development. REMAND Although the Board acknowledges that this case has been remanded on two prior occasions, the rating criteria for kidney disorders with regard to separate ratings for cardiovascular residuals of kidney failure have changed. The United States Court of Veterans Appeals (Court) has stated that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded the version most favorable to the appellant will apply unless Congress provided otherwise. Karnas v. Derwinski, 1 Vet.App. 308 (1990). The Court has further stated that when the Board addresses in its decision a question that was not addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument. If not, it must be considered whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). In addition, if the Board determines that the claimant has been prejudiced by a deficiency in the statement of the case, the Board should remand the case to the RO pursuant to 38 C.F.R. § 19.9 (1994), specifying the action to be taken. Bernard v. Brown, 4 Vet.App. 384, 394 (1993) In this case, kidney disorders are rated under the provisions of 38 C.F.R. § 4.115 (1994). Effective in 1994, 38 C.F.R. § 4.115 (1994) was amended. Since the newly amended regulations have not been applied in the veteran's case and since he has not been afforded an opportunity to submit evidence and argument as to the new regulations, the Board finds that this case must be remanded for the application of the amended provisions of the rating schedule. In pertinent part, 38 C.F.R. § 4.115 (1994) was amended to include the following provision: if absence of a kidney is the sole renal disability, the absent kidney and any hypertension or heart disease will be separately rated. In addition, 38 C.F.R. § 4.115a (1994), was amended to include descriptions of various levels of disability relating to renal dysfunction. These descriptions are set forth in detail in the newly amended rating schedule. Further, the provision governing the schedular ratings for kidney transplant was amended. Specifically, under Diagnostic Code 7531, a 100 percent rating is assigned following transplant surgery. Thereafter, the veteran's disability is to be rated as renal dysfunction with a minimum rating of 30 percent. In addition, it is noted under that code that the 100 percent evaluation shall be assigned as to the date of hospital admission for transplant surgery and shall continue with a mandatory VA examination one year following hospital discharge. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (1994) which is the provision governing reduction in evaluations. In light of the newly amended regulations under 38 C.F.R. § 4.115 (1994), the Board finds that this case must be remanded to comply with the directives set forth in Bernard and Karnas. Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: 1. The veteran should be afforded a VA examination to determine the current nature, extent, and manifestations of his service-connected disability. The claims file should be made available to the examiner prior to the examination. The examiner should determine the veteran's blood pressure and whether he exhibits albuminuria with edema. Laboratory tests should be completed and the veteran's blood urea nitrogen and creatinine values should be determined. 2. The RO should readjudicate the veteran's claim for entitlement to an increased rating for glomerulonephritis with azotemia, postoperative status renal transplant with a history of hemodialysis taking into account the newly amended provisions of 38 C.F.R. § 4.115 (1994) and the nature of the veteran's disability which includes the removal of both kidneys and the transplant of a single kidney. If the action taken as to the increased rating issue is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations including 38 C.F.R. § 4.115 (1994), as amended on January 18, 1994. The veteran should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. G.H. SHUFELT Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).