Case A26038170

RAY BARTO SLABBEKORN, JR. · 2026 · Case ID: A26038170

DENIED

Summary

The veteran, who served in the United States Marine Corps from September 1971 to September 1974, including service at Camp LeJeune, North Carolina, appeals the denial of his claim to reverse a July 2017 rating decision based on clear and unmistakable error (CUE). The veteran sought an earlier effective date for his service-connected chronic renal disease, status-post neoplasm of the kidney and right nephrectomy, alleging he filed a claim in July 2012 that was lost by a VA employee. The Board found no evidence beyond the veteran's testimony to support this claim, noting that his July 2012 application was for hearing and tinnitus, not kidney issues, and his first claim for kidney disability was in February 2016. The Board also reviewed the July 2017 decision, which granted service connection for the kidney condition based on a presumptive link to Camp LeJeune water contamination effective March 14, 2017, and found no CUE. The veteran also appealed the denial of increased ratings for gout in both feet. While the Board agreed to re-evaluate the diagnostic code for gout, finding the current 10% rating under DC 5284 inappropriate and changing it to DC 5017, it determined that the evidence did not support a rating higher than 10% for either foot, citing the veteran's own reports of intermittent pain and the lack of more severe findings. The Board noted that the veteran's gout was well-controlled with medication and did not meet the criteria for higher ratings.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250609-550257

Full Decision Text

Citation Nr: A26038170
Decision Date: 04/23/26 Archive Date: 04/23/26

DOCKET NO. 250609-550257
DATE: April 23, 2026

ORDER

The claim to reverse or revise the July 2017 rating decision that granted entitlement to service connection for chronic renal disease status-post neoplasm of the kidney and right nephrectomy effective March 14, 2017, on the basis of clear and unmistakable error (CUE), is denied.

Entitlement to a disability rating in excess of 60 percent for chronic renal disease status-post neoplasm of the kidney and right nephrectomy is denied.

Entitlement to an initial disability rating in excess of 10 percent for gout of the right foot is denied.

Entitlement to an initial disability rating in excess of 10 percent for gout of the left foot is denied.

FINDINGS OF FACT

1. The July 2017 rating decision, which granted the Veteran's claim for entitlement to service connection for chronic renal disease status-post neoplasm of the kidney and right nephrectomy effective March 14, 2017, was adequately supported by the evidence of record, considered the correct facts as they then existed, correctly applied the statutory or regulatory provisions extant at that time, and did not contain an undebatable or egregious error of fact or law that was outcome determinative.

2. The Veteran's service-connected chronic renal disease status-post neoplasm of the kidney and right nephrectomy has not manifested in symptoms of no less than glomerular filtration rate (GFR) 60 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months; nor requiring regular routine dialysis; nor eligible kidney transplant recipient; nor GFR from 60 to 89 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months and the presence of recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, granular casts, structural kidney abnormalities (cystic, obstructive, or glomerular), nor increased secretion of protein in the urine (proteinuria).

3. The Veteran's gout of the right foot manifests in painful noncompensable limitation of range of motion of no worse than a group of minor joints [the great toe].

4. The Veteran's gout of the left foot manifests in painful noncompensable limitation of range of motion of no worse than a group of minor joints [the great toe].

CONCLUSIONS OF LAW

1. The July 2017 rating decision which granted the Veteran's claim for entitlement to service connection for chronic renal disease status-post neoplasm of the kidney and right nephrectomy effective March 14, 2017, was not clearly and unmistakably erroneous. 82 Fed. Reg. 4173 (Jan. 13, 2017); 38 U.S.C. §§ 5109A, 5110(g); 38 C.F.R. §§ 3.105, 3.114(a), 3.307, 3.309.

2. The criteria for entitlement to a disability rating in excess of 60 percent for chronic renal disease status-post neoplasm of the kidney and right nephrectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.115(A), 4.115(B), Diagnostic Code 7500.

3. The criteria for entitlement to an initial disability rating in excess of 10 percent for gout of the right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, Diagnostic Code 5017, Diagnostic Code 5284.

4. The criteria for entitlement to an initial disability rating in excess of 10 percent for gout of the left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, Diagnostic Code 5017, Diagnostic Code 5284.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from September 1971 until his honorable discharge in September
Diagnostic Code 5284.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from September 1971 until his honorable discharge in September 1974. See September 1974 DD Form 214 (Certificate of Release or Discharge from Active Duty). The Veteran was stationed at Camp LeJeune, North Carolina from June 30, 1972 to August 6, 1974. See Service Personnel Records, Chronological Record of Duty Assignments.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c).

The rating decision on appeal was issued in June 2025 and constitutes an initial decision. Therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See June 2025 Rating Decision.

In a June 17, 2025, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement)), the Veteran elected the Hearing docket. A Board hearing was held on October 8, 2025, before the undersigned Veterans Law Judge. This decision reflects the Board's consideration of the testimony, evidence, and information presented at that hearing, and a transcript of the hearing is in the Veteran's claims file. As an appeal in which the appellant requested, on the Notice of Disagreement, a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issues on appeal, evidence submitted by the appellant or his representative at the hearing, to include testimony provided at the hearing, and evidence submitted by the appellant or his representative within 90 days following the hearing. 38 C.F.R. § 20.302(a)."

There is evidence in the Veteran's claims file that arrived there during a timeframe when the Board could not consider it in deciding this appeal. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a VA Form 20-0995 (Decision Review Request: Supplemental Claim) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Clear and Unmistakable Error

Generally, a decision of the VA Regional Office that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. If the evidence establishes CUE, the prior decision will be reversed or revised; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R §§ 3.104(a), 3.105(a).

CUE is a very specific and rare kind of error of fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).

CUE is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such,
ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).

CUE is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).

A previous VA Regional Office determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a).

Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44.

Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.

CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442.

Mere misinterpretation of the facts does not constitute CUE. Oppenheimer
the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442.

Mere misinterpretation of the facts does not constitute CUE. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Assertions that the previous adjudication at issue "improperly weighed and evaluated the evidence" does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43.

Likewise, a breach of VA's duty to notify and assist cannot constitute CUE. Crippen v. Brown, 9 Vet. App. 412, 418 (1996); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994). This includes situations when the VA Regional Office is alleged to have breached the duty to assist a veteran in obtaining relevant service medical records that may render a prior rating decision non-final, or another kind of "grave procedural error" ostensibly has occurred. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2003) (en banc).

Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a).

To revise a prior final VA decision: (1) either the correct facts known at the time of the decision were not before the adjudicator, or the law as it existed at the time of the decision was incorrectly applied, the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated; and (2) based on the record and law that existed at the time, the error was undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). Only evidence that was in the claims file at the time of the challenged decision may be considered. Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (holding that "evidence" in 38 U.S.C. § 5109A(a) is limited to evidence that was of record at the time of the challenged VA Regional Office decision).

To establish CUE, the claimant must show, inter alia, that the error would have manifestly changed the outcome. See Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)).

A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d
App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)).

A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); see also Russell v. Principi, 3 Vet. App. 310, 313-14 (1992); Porter v. Brown, 5 Vet. App. 233, 236 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999).

The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c).

The benefit of the doubt provisions of 38 U.S.C. § 5107(b) do not apply to CUE motions. 38 C.F.R. § 20.1411(a).

1. The claim to reverse or revise the July 2017 rating decision that granted entitlement to service connection for chronic renal disease status-post neoplasm of the kidney and right nephrectomy effective March 14, 2017, on the basis of CUE, is denied.

The Veteran asserts that he is entitled to an earlier effective date of 2012 for the grant of entitlement to service connection for kidney disabilities due to CUE because he believes that he initially filed for entitlement to service connection for kidney disabilities in July 2012. Furthermore, during the hearing, the Veteran testified that he did submit an application, but it was taken home by a VA employee and not filed.

The Board notes that the record does not contain any evidence beyond the Veteran's testimony at the Board hearing supporting the assertion that a VA employee took the Veteran's application home and did not process the application. In contrast, as will be addressed in greater detail below, the record does reflect a July 2012 application for entitlement to service connection for bilateral hearing loss and entitlement to service connection for bilateral tinnitus, without including a claim for any kidney disabilities.

As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003).

In July 2012, the Veteran filed a VA Form 21-526 (Veteran's Application for Compensation and/or Pension) seeking entitlement to service connection for bilateral hearing loss and entitlement to service connection for bilateral tinnitus. See July 2012 VA Form 21-526 (Veteran's Application for Compensation and/or Pension), p. 1. The Veteran's claim for entitlement to service connection for bilateral tinnitus was denied and the Veteran withdrew his claim for entitlement to service connection for bilateral hearing loss. See December 2012 Rating Decision; see also December 2012 Codesheet. Furthermore, the record does not reflect a formal nor an informal application for a kidney disability prior to February 26, 2016.

On February 26, 2016, the Veteran submitted a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) for entitlement to service connection for kidney cancer, residual(s) of kidney cancer, and removal of right kidney in 2005 due to exposure to contaminated water at Camp LeJeune, North Carolina. See February 2016 VA Form VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), p. 2.

On November 4, 2016, the Veteran submitted a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) for entitlement to service connection for kidney condition(s) due to exposure to contaminated water at Camp LeJeune, North Carolina. See November 2016 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), p. 2.

In July 2017, the AOJ granted the Veteran's claim(s) for entitlement to service connection for chronic renal disease status-post neoplasm of the kidney, and right nephrectomy with a 60 percent evaluation, effective March 14, 2017, the date of the law change recognizing kidney cancer as a presumptive disability associated with exposure to contaminated water at Camp LeJeune, North Carolina. See July 7, 2017 Rating Decision, p. 3. The Veteran did not appeal this claim, nor submit new and material evidence within one year, and it became final in July 2018.

The record reflects a May 2017 VA medical opinion that provides a positive nexus opinion associating the Veteran's kidney cancer as a presumptive disability associated with exposure to contaminated water at Camp LeJeune, North Carolina based upon the March 2017 change in regulation(s). The May 2017 VA examiner noted the lengthy history starting in the early-1980s when the United States Marine Corps began monitoring water quality, the 2009 National Research Council (NRC) report noting limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture, the August 2012 Honoring America's Veterans and Caring for Camp LeJeune Families Act, Public Law 112-154 that afforded medical care notwithstanding that there is insufficient medical evidence to conclude that such illnesses or conditions are attributable to such service or residence. Furthermore, as noted in the May 2017 VA medical opinion, the VA Technical Workgroup (TWG) identified at least one internationally recognized scientific authorities recently (at the time) concluded that there is strong evidence supporting a causal relationship between kidney cancer and TCE (EPA 2011, IARC 2014, NTP 2015). However, the May 2017 VA examiner did not identify or provide an opinion beyond the relationship to the TWG. Therefore, the Veteran's claim is limited to how the evidence of record was evaluated. Although there is a positive nexus opinion, the VA medical opinion is based upon the change in regulations to provide presumptive service connection and not the scientific studies that may have supported the Veteran's claim.

As to the change in regulations, effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases, including but not limited to kidney cancer, to the list of diseases associated with contaminants present in the water supply at United States Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987; including but not limited to kidney cancer. See 38 C.F.R. §§ 3.307, 3.309(f).

The Board notes that the Veteran had service at Camp LeJeune, North Carolina from June 30, 1972, to August 6, 1974, therefore he served at Camp LeJeune, North Carolina within the presumptive period of exposure to contaminated water.

The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R.
met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a).

The Board notes that the Veteran's claim(s) were pending before VA on January 13, 2017, the date that the changes became effective. Additionally, 38 C.F.R. § 3.114(a) provides that:

(1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of the claimant received within 1-year from that date, benefits may be authorized from the effective date of the law or VA issue.

(2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement.

(3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.

Because the Veteran's claim was already pending at the time of the change in law, the Veteran does not meet the criteria for any retroactive payment on the basis of the change of law.

In October 2024, the Veteran applied for a retroactive effective date of 2012 for the grant of service connection for his kidney disabilities based upon CUE. See October 22, 2024 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits); see also October 28, 2024 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits).

In this instance, in the July 2017 rating decision, the AOJ found that the Veteran's kidney disabilities were associated with his exposure to contaminated water at Camp LeJeune, North Carolina on a presumptive basis due to a change in the law, effective January 13, 2017 and granted the Veteran's claim(s) effective the date of the change in the law. Based on the evidence that was before the AOJ at the time of the July 2017 rating decision, it is clear from the face of that decision that the applicable law, including that governing the presumption of soundness, was considered in the AOJ's adjudication of the case. Accordingly, CUE in the July 2017 rating decision that granted entitlement to service connection for chronic renal disease status-post neoplasm of the kidney, and right nephrectomy with a 60 percent evaluation, effective March 14, 2017, has not been shown.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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 ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1
that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509.

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

1. Entitlement to a disability rating in excess of 60 percent for chronic renal disease status-post neoplasm of the kidney and right nephrectomy is denied.

The Veteran asserts that he is entitled to a disability rating in excess of 60 percent for his service-connected chronic renal disease status-post neoplasm of the kidney and right nephrectomy. However, it is unclear as to the basis of the Veteran's assertion.

The Veteran's chronic renal disease status-post neoplasm of the kidney and right nephrectomy is evaluated under 38 C.F.R. § 4.115B. Diagnostic Code 7500 provides that the removal of one kidney warrants a minimum 30 percent evaluation and that if there is nephritis, infection, or pathology of the other kidney, to evaluate as renal dysfunction.

38 C.F.R. § 4.115A provides that Renal Dysfunction warrants a 100 percent rating for chronic kidney disease with glomerular filtration rate (GFR) less than 15 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months; or requiring regular routine dialysis; or eligible kidney transplant recipient. An 80 percent rating is now warranted for chronic kidney disease with GFR from 15 to 29 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months. A 60 percent rating is warranted for chronic kidney disease with GFR from 30 to 44 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months. A 30 percent rating is warranted for chronic kidney disease with GFR from 45 to 59 mL/min/1.73m2 for at least
/1.73m2 for at least 3 consecutive months during the past 12 months; or requiring regular routine dialysis; or eligible kidney transplant recipient. An 80 percent rating is now warranted for chronic kidney disease with GFR from 15 to 29 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months. A 60 percent rating is warranted for chronic kidney disease with GFR from 30 to 44 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months. A 30 percent rating is warranted for chronic kidney disease with GFR from 45 to 59 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months. GFR from 60 to 89 mL/min/1.73m2 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/1.73m2 and structural kidney abnormalities (cystic, obstructive, or glomerular) for at least 3 consecutive months during the past 12 months. A noncompensable rating is warranted for GFR from 60 to 89 mL/min/1.73m2 and albumin/creatinine ratio (ACR) >30 mg/g for at least 3 consecutive months during the past 12 months. Id. 38 C.F.R. § 4.115A, Renal Dysfunction.

Therefore, the question for the Board is if the Veteran's chronic renal disease status-post neoplasm of the kidney and right nephrectomy manifests in glomerular filtration rate (GFR) less than 15 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months; or requiring regular routine dialysis; or eligible kidney transplant recipient (the criteria for a 100 percent disability rating); or GFR from 15 to 29 mL/min/1.73m2 for at least 3 consecutive months during the past 12 months (the criteria for an 80 percent disability rating).

Upon review of the record, the Board does not find that a rating in excess of 60 percent is warranted for the Veteran's chronic renal disease status-post neoplasm of the kidney and right nephrectomy.

The Veteran was afforded a VA examination in March 2024 and December 2024. The December 2024 VA examiner found that the Veteran does not have renal dysfunction. See December 2024 VA Examination, Section III. The December 2024 VA examiner noted that the Veteran has normal kidney function with GFR of 78, does not require regular nor routine dialysis, has not had a kidney transplant, nor has his GFR been below 60 mL/min/1.73m2 for at least 3 consecutive months nor a GFR from 60 to 89 mL/min/1.73m2 for at least 3 consecutive months with recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, granular casts, structural kidney abnormalities (cystic, obstructive, or glomerular), nor increased secretion of protein in the urine (proteinuria).

As there is no other diagnostic code under which a greater or separate rating may be assigned, the claim of entitlement to a disability rating in excess of 60 percent for chronic renal disease status-post neoplasm of the kidney and right nephrectomy, is denied. The Board finds that the weight of evidence is against the claim for a higher disability rating, the evidence is not in approximate balance, there is no reasonable doubt to resolve in favor of the Veteran, and the criteria for a higher disability rating are not met or more nearly approximated.

In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence is persuasively against the claim for a higher disability rating. Thus, the
a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence is persuasively against the claim for a higher disability rating. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue.

2. Entitlement to an initial disability rating in excess of 10 percent for gout of the right foot is denied.

3. Entitlement to an initial disability rating in excess of 10 percent for gout of the left foot is denied.

The Veteran is seeking a higher disability rating because he has constant pain in his feet, but noted that his gout is fairly well under control due to daily medication (Allopurinol). The Veteran noted that he needs to be careful of what he eats when he goes out because it can trigger the gout to the point where he is unable to walk. The Veteran also reported that he gets flare-ups of shooting pain approximately once per month (or a couple of times per week) that can prevent him from walking for a couple of hours.

As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code).

The Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 5284 for gout associated with chronic renal disease status-post neoplasm of the kidney and right nephrectomy for each foot. Diagnostic Code 5284 provides for other foot injuries.

Accordingly, the Veteran is currently being rated for other foot injuries. However, the March 2025 and July 2025 VA examinations demonstrated that the Veteran has a diagnosis of gout in the bilateral great toes. Furthermore, the Board notes that gout has a specific Diagnostic Code. Specifically, the Diagnostic Code for gout is 5017.

Therefore, the Board finds that a rating under Diagnostic Code 5284 is not the appropriate Diagnostic Code to rate the Veteran's disability. The evidence does show that the Veteran is diagnosed with gout in each of his great toes. As such, the Board finds that a rating under Diagnostic Code 5017 for gout is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability of gout is Diagnostic Code 5017.

The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 5284 for under 2 years and is therefore not afforded protection under 38 U.S.C. § 1159. However, the Board finds that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Therefore, the Board finds that a change in the Diagnostic Code would not violate the Veteran's rights under 38 U.S.C. § 1159, even if it were protected.

The Veteran's gout of the bilateral feet disabilities are now rated under 38 C.F.R. § 4.71a, Diagnostic Code 5017. Note 1 provides that evaluation of the diseases under Diagnostic Code 5013 through 5024 as degenerative arthritis [Diagnostic Code 5003], based on limitation of motion of the affected parts.

Degenerative arthritis is rated under Diagnostic Code 5003, which provides ratings for degenerative arthritis. Degenerative arthritis (osteoarthritis or hypertrophic) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a disability rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings
3], based on limitation of motion of the affected parts.

Degenerative arthritis is rated under Diagnostic Code 5003, which provides ratings for degenerative arthritis. Degenerative arthritis (osteoarthritis or hypertrophic) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate diagnostic codes, a disability rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

The Board finds that the evidence of record persuasively weighs against a disability rating in excess of 10 percent for gout of the right foot and in excess of 10 percent for gout of the left foot. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain producing limitation with standing, ambulating with various levels of severity. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating moderately severe other foot injuries.

The Veteran does not assert, nor does the evidence reflect that the Veteran has been diagnosed with gout beyond his bilateral great toes.

The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id.

Here, the Veteran's disability of gout is listed. Additionally, the Veteran does have other disabilities with other part(s) of the feet. The Veteran has been diagnosed with degenerative arthritis of the bilateral feet, plantar fasciitis of the right foot, and hallux valgus of the right foot.

Finally, the Board notes that although the Veteran does not assert, nor does the evidence reflect that the Veteran's gout impacts a group of minor joint(s) [i.e., multiple toes], even the Veteran's entire foot, including all toes, had gout, painful noncompensable limitation of range of motion of a group of minor joints would warrant the same 10 percent disability rating that the Veteran is currently assigned.

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In conclusion, the Board finds that the evidence of record persuasively weighs against a disability rating in excess of 10 percent for gout of each foot. As the evidence of record persuasively weighs against a disability rating in excess of 10 percent for gout of each foot, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board G. Deemer, 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.

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