KIDNEY DISEASE OF

Summary

The Veteran, who served from April 1969 to April 1970, appeals the denial of a total disability rating based on individual unemployability (TDIU) and the rating for chronic kidney disease. The Board granted an initial 60 percent disability evaluation for chronic kidney disease throughout the appeal period, finding that the evidence, including laboratory findings from September 2016 and May 2018, reflected decreased kidney function consistent with the criteria for that rating. The Board applied the more favorable rating criteria in effect since November 14, 2021, and resolved reasonable doubt in the Veteran's favor, concluding that the evidence approximated the criteria for a 60 percent evaluation, though not higher. Regarding TDIU, the Veteran submitted an incomplete VA Form 21-8940 and did not respond to the agency of original jurisdiction's request for completion. The Board found no pre-decisional duty to assist error and denied TDIU due to insufficient evidence to establish unemployability, noting the lack of information regarding the Veteran's employment history and when his service-connected disabilities prevented him from maintaining substantially gainful employment. The Board also clarified that any evidence submitted after the AOJ decision could not be considered and advised the Veteran on filing a Supplemental Claim.

Rationale

Evidence consistent with 60% criteria (proteinuria, edema, decreased kidney function); Resolving reasonable doubt in favor of Veteran; Evidence approximates criteria for 60% evaluation

Full Decision Text

Citation Nr: A26040316
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 251211-602760
DATE: April 29, 2026

ORDER

Entitlement to an initial 60 percent disability evaluation for chronic kidney disease throughout the appeal is granted.

Entitlement to a total disability rating due to individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. During the appeal period, the Veteran's chronic kidney disease did not include renal dysfunction manifested by persistent edema and albuminuria with BUN 40 to 80 mg% (mg/dL); or creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 

2. From November 14, 2021 GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months was not shown.

3. The Veteran failed to substantially complete a VA Form 21-8940, and the current evidence is insufficient to establish that he is unemployable as a result of service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating of 60 percent, but no higher, for chronic kidney disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.115a, Diagnostic Code (DC) 7530.

2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from April 1969 to April 1970.

In June 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2024 decision pertaining to chronic kidney disease. In September 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2024 decision.

The rating decision pertaining to TDIU on appeal was issued in October 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the December 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

As to a TDIU, the Board may only consider the evidence of record at the time of the October 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

Regarding chronic kidney disease, the Board may only consider the evidence of record at the time of the December 2024 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Veteran has the right to select a different Board review option by submitting a new VA Form 10182 within one year from the date the AOJ mailed the decision on appeal, or within 60 days of the date the Board received the VA Form 10182, whichever date is later. 38 C.F.R. § 20.202(c)(2); see Williams v. McDonough, 37 Vet. App. 305 (2024). In this case, the period to change dockets per 38 C.F.R. § 
 VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Veteran has the right to select a different Board review option by submitting a new VA Form 10182 within one year from the date the AOJ mailed the decision on appeal, or within 60 days of the date the Board received the VA Form 10182, whichever date is later. 38 C.F.R. § 20.202(c)(2); see Williams v. McDonough, 37 Vet. App. 305 (2024). In this case, the period to change dockets per 38 C.F.R. § 20.202(c)(2) has not elapsed. In a February 4, 2026, the Veteran was notified that he could waive his right to select a different review option. On March 4, 2026, the Veteran submitted a signed copy waiving his right to select a different Board review option.

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

1. Chronic kidney disease

The Veteran's renal condition was awarded an initial 60 percent rating from July 31, 2021 and an evaluation of 30 percent was assigned effective November 14, 2021 under DC 7530. 

The schedular criteria for rating renal dysfunction were amended effective November 14, 2021. As of that date, renal dysfunction is measured by glomerular filtration rate (GFR) or, pursuant to the associated Note, estimated GFR (eGFR) or creatinine-based approximations of GFR.

Where, as here, a regulation is amended during the pendency of a claim, the more favorable version to the Veteran will be applied, except that the amended version will not be applied retroactively unless there is an explicit indication that the amended version was intended to be so applied. Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003).

The pre-amended version of renal dysfunction under 38 C.F.R. § 4.115a provides: a 30 percent rating for renal dysfunction resulting in 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 for renal dysfunction resulting in 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 for renal dysfunction resulting in persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80% mg; or creatinine 4 to 8% mg; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; and a 100 percent rating where regular dialysis is required, precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular.

With respect to the "definite decrease in kidney function," which is part of the 60 percent criteria, the term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing impairment that is "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); Hood v. Brown,
 percent rating where regular dialysis is required, precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular.

With respect to the "definite decrease in kidney function," which is part of the 60 percent criteria, the term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing impairment that is "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); Hood v. Brown, 4 Vet. App. 301 (1993).

Under the criteria in effect since November 14, 2021, renal dysfunction is measured by glomerular filtration rate (GFR) or, pursuant to the associated Note, estimated GFR (eGFR) or creatinine-based approximations of GFR. Under the new criteria, a zero percent rating is assigned 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) is equal or more than 30 mg/g for at least 3 consecutive months during the past 12 months. 38 C.F.R. §§ 4.115a, 4.115b.

A 30 percent rating 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. Id.

A 60 percent rating 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. Id.

An 80 percent rating 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. Id.

A 100 percent rating 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. Id.

An accompanying Note indicates that GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR will be accepted for evaluation purposes under this section when determined to be appropriate and calculated by a medical professional. Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.

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 from November 14, 2021.

Turning to the evidence, laboratory findings from September 2016 showed BUN of 29, creatinine of 1.77, and an eGFR of 40, reflecting decreased kidney function. A May 2018 examination documented proteinuria, edema, lethargy, and weakness. This evidence is consistent with the criteria for a 60 percent evaluation.

More recent evidence includes an October 2024 examination reflecting December 2016 laboratory findings of BUN 18 and Creatinine 1.5. EGFR was 49 as of October 2024. While these findings demonstrate some improvement in kidney function, they nonetheless continue to reflect abnormal kidney function. The record does not clearly establish that the Veteran's prior manifestations of proteinuria and edema have fully resolved or that any improvement represents sustained material improvement
 of 29, creatinine of 1.77, and an eGFR of 40, reflecting decreased kidney function. A May 2018 examination documented proteinuria, edema, lethargy, and weakness. This evidence is consistent with the criteria for a 60 percent evaluation.

More recent evidence includes an October 2024 examination reflecting December 2016 laboratory findings of BUN 18 and Creatinine 1.5. EGFR was 49 as of October 2024. While these findings demonstrate some improvement in kidney function, they nonetheless continue to reflect abnormal kidney function. The record does not clearly establish that the Veteran's prior manifestations of proteinuria and edema have fully resolved or that any improvement represents sustained material improvement in the overall disability picture.

The Board acknowledges that the AOJ assigned a 30 percent evaluation from November 14, 2021, based on the amended rating criteria. However, a change in law, standing alone, does not mandate a reduction in evaluation. Rather, the Board must determine which version of the criteria is more favorable and assess the Veteran's disability based on the totality of the evidence. Here, the evidence reflects a disability picture characterized by chronic renal impairment with fluctuating but persistently abnormal findings.

Given the documented history of proteinuria and edema, as well as continued decreased kidney function, and resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's renal condition more nearly approximates the criteria for a 60 percent evaluation throughout the appeal.

The Board finds that a disability rating in excess of 60 percent is not warranted for the Veteran's chronic kidney disease based under the old criteria prior to November 2021 or under both criteria subsequent to the revisions.

The Board finds that based on the criteria prior to November 14, 2021, the probative evidence is against finding that the Veteran's chronic kidney disease manifested as persistent edema and albuminuria with BUN 40 to 80mg %; or, creatinine 4 to 8mg %; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Thus, the Board finds that based on the November 2021 criteria, the probative evidence is against finding that a disability rating in excess of 60 percent is warranted for the Veteran's chronic kidney condition based on the criteria prior to November 14, 2021.

The Board finds that based on the criteria from November 14, 2021, that a disability rating in excess of 60 percent is not warranted because the Veteran's chronic kidney disease did not manifest as with GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months.

Accordingly, the Veteran is entitled to an initial 60 percent evaluation, but no higher, throughout the appeal. However, the evidence of record persuasively weighs against a rating in excess of 60 percent for the Veteran's chronic kidney disease under DC 7530 during the appeal period.

2. TDIU

The Veteran seeks entitlement to a TDIU. The Veteran submitted VA Form 21-8940 in July 2025. The Veteran reported he had a high school education, and he has not had any other training or education. He did not include when he stopped working due to a service connected disability, but he indicated by "N/A" regarding any employment including self-employment over the prior five years.

The Veteran was sent a letter in September 2025 that informed him that the VA Form 21-8940 was not substantially complete and requested that he complete and return a complete VA Form 21-8940 in order to provide information about his employment history. No response was received from the Veteran.

The Board notes that this appeal is under the Direct Review docket of the Appeals Modernization Act. Under this review option, the Board may remand only to correct pre-decisional duty to assist errors. Here, the AOJ requested that the Veteran provide substantially complete information regarding his TDIU claim, but he did not respond. As such, there is no pre-decisional duty to assist error, and a remand to obtain a substantially completed VA Form 21-8940 or otherwise further develop the claim is not permitted.

A substantially complete VA Form 21-8940 is helpful to establish entitlement to TDIU because it gathers relevant information regarding a claimant's disabilities and employment and educational histories. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, income information, and when his service connected disabilities prevented him from maintaining gainful employment, which is necessary to properly address a claim for TDIU. The Veteran's failure to substantially complete the VA Form
 pre-decisional duty to assist error, and a remand to obtain a substantially completed VA Form 21-8940 or otherwise further develop the claim is not permitted.

A substantially complete VA Form 21-8940 is helpful to establish entitlement to TDIU because it gathers relevant information regarding a claimant's disabilities and employment and educational histories. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, income information, and when his service connected disabilities prevented him from maintaining gainful employment, which is necessary to properly address a claim for TDIU. The Veteran's failure to substantially complete the VA Form 21-8940 leaves the Board without sufficient evidence to assess his employment status for the appeal period.

Other records in the claims file substantiate that the Veteran retired from the Post Office in 2009. However, his work history thereafter is unclear from the record. A March 2018 examination reveals that the Veteran trains horses six months per year. However, it is unclear if and when the Veteran terminated this vocation, nor whether it is or was substantially gainful work.

Because of the lack of cooperation with VA's attempt to develop the claim for TDIU, the Board cannot adequately adjudicate the claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Without the requested information, the Board is unable to determine critical facts, including when the Veteran asserts his service-connected disabilities prevented him from maintaining substantially gainful employment.

The Board has considered whether the record, standing alone, is sufficient to establish unemployability. While the medical evidence reflects impairments due to the Veteran's service connected disabilities, it does not clearly demonstrate that he is precluded from securing or following substantially gainful employment. 

The Veteran is capable of substantially gainful employment. Rather, the Board finds that the current record does not contain sufficient information to make such a determination in his favor. The Board notes the record demonstrates that the Veteran performed work training horses; however, it would be purely speculative for the Board to determine when such work ended or whether it constituted substantially gainful employment in the absence of further information.

Accordingly, while the Board is sympathetic to the Veteran's claim and recognizes the impact of his service-connected disabilities, absence of evidence addressing the Veteran's employment history throughout the appeal prevents the Board from finding that the criteria for a TDIU have been met. The claim is denied.

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	St. Laurent, A.

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.