Effective November 14, 2021, the criteria used to establish a VA rating for kidney disease (providing disability compensation for renal dysfunction to veterans with service-connected genitourinary conditions) was updated.
Why is the VA updating the VA rating for Kidney Disease (Renal Dysfunction)?
There’s a lot to unpack in this updated regulation, but we need to start with the background.
For decades – since the 1990s, at least – the VA has been promising (or, depending on your perspective, threatening) to update its Schedule of Rating Disabilities. The VA Schedule of Rating Disabilities (I call it the VASRD or the Impairment Rating Tables) lists the criteria for assigning an impairment percentage to a particular condition. You can learn more about impairment ratings here.
Most of the ratings in the VASRD are horribly outdated, and based on horribly outdated criteria that is inconsistent with a modern understanding of disability. They often use vague and ambiguous wording that allows the VA raters wide latitude in how they choose to rate the disabilities for individual veterans.
In addition to being patently unfair and resulting in veterans with the same degree of disability for the same condition receiving different ratings, the use of vague and ambiguous language in regulations is one way that the VA preserves institutional white supremacy.
Before we talk about “renal dysfunction” let me explain that last statement. Renal dysfunction is one of the two most common ways to determine a VA rating for kidney disease; the second most common way is “voiding dysfunction.” For example, once prostate cancer is no longer under active treatment, its residuals would be rated (commonly) as a “renal dysfunction” or a “voiding dysfunction,” whichever is predominant.
The VA uses vague terminology in the impairment rating tables that is open to different interpretations by different raters to institutionalize white supremacy. The old rating rules for renal dysfunction use words like “more than sedentary activity” and “markedly decreased function of kidney or other organ systems” and “generalized poor health and “definite decrease in kidney function” to rate any renal dysfunction that resulted from prostate cancer.
These vague concepts were applied differently by different raters and resulted in some veterans – invariably white veterans – getting a higher rating than Black veterans with the same exact disability.
And so, over the years, Black veterans have been consistently under-rated for their prostate cancer residuals because raters apply stricter definitions to their renal or voiding residuals than they do in claims and appeals by non-Black veterans.
The VA continues to look at the world through its rose-colored glasses and denies these ratings disparities – however, President Biden, in November 2021, ordered the General Accounting Office to review VA benefits system to determine if there are any discriminatory rating practices.
Another way that the VA institutionalize white supremacy through its impairment rating system is simply by ignoring or diminishing the voice of Black veterans who articulate concerns with the system. For example, Black veterans have long told the VA that the lack of good screening tools and recommendations not to routinely screen for prostate cancer were motivated by racism or ageism. The VA ignores those expressions of concern as “playing the race card”, further institutionalizing White supremacy in the VA treatment system.
By updating the VA regulations, many advocates and veterans had hoped that the introduction of objective and quantifiable rating standards will purge the influence of white supremacy, and introduce fairness and consistency into the rating process. As you will see below, that does not appear to have happened with the renal dysfunction rating changes.
What is a “Regulation Update”?
On October 15, 2019, the VA published a proposed new rule for the VA Schedule of Rating Disabilities. Specifically, they sought to update how “renal dysfunction” was rated for veterans with service-connected genitourinary diseases and conditions. You can read the proposed rule in the Federal Register at this link: 84 FR 55086.
Once the VA proposes a new rule, they have to allow a time for public comment on the proposed rules, and then they respond to the comments in the publication of the final rule.
On September 30, 2021, the VA published their responses to the comments and the final regulation, which you can read in the Federal Register at this link: 86 FR 54081.
If you’d like to read more about how VA regulations work in the law, and how they are different from bills and statutes, click here to read How Veterans Law is Made
How is Renal Dysfunction used in VA ratings for kidney disease?
To understand renal dysfunction, one most understand “renal function.”
Please understand that I am not a doctor, and so this description may be less than medically precise; my goal is to give you a layman’s sense of why the functions your kidney performs is relevant to a renal dysfunction rating for service-connected genito-urinary conditions.
Your kidneys have two over-arching jobs.
The first is to remove waste products and excess fluid from your body through production of urine. The second is to produce hormones that balance body chemistry and organ functioning (for example, your kidneys produce hormones that stimulate red blood cell production, regulate your blood pressure and strengthen your bones.
When the kidneys are unable to perform these functions due to a service-connected disability, there is “renal dysfunction.” If this renal dysfunction is more predominant than any voiding dysfunction that is a residual of a genito-urinary condition (like prostate cancer), then the VA will rate your residuals using the “renal dysfunction” rating table at 38 C.F.R. §4.115.
The OLD way of rating Renal Dysfunction
Prior to November 14, 2021, the VA rated Renal dysfunction using the following criteria:
100 percent rating: Requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular
80 percent rating: 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
60 percent rating: Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101
30 percent rating: 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
0 percent rating: Albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101
Can you see the major problem with this approach to rating?
Vague words like “markedly, generalized, persistent, some, definite decrease, transient, slight” control the outcome of a veteran’s rating.
There are raters in the VA with very different ideas of what constitutes “markedly decreased function of kidney or other organ systems.” And we know there are raters that give those words a broader reading for white veterans, and a narrow reading for Black veterans.
Without mentioning the racial disparity, however, the VA proposed a new rating schedule for “renal dysfunction” that they want us to believe takes the subjectivity out of VA rating for kidney disease (renal dysfunction).
The NEW way of rating Renal Dysfunction.
Here is how the VA will rate Renal dysfunction for claims after November 14, 2021:
1000 percent rating: Chronic kidney disease with glomerular filtration rate (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
80 percent rating: 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
60 percent rating: 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
30 percent rating: 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
0 percent rating: GFR from 60 to 89 mL/min/1.73 m2 and either recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, or granular casts for at least 3 consecutive months during the past 12 months; or GFR from 60 to 89 mL/min/1.73 m2 and structural kidney abnormalities (cystic, obstructive, or glomerular) for at least 3 consecutive months during the past 12 months; or GFR from 60 to 89 mL/min/1.73 m2 and albumin/creatinine ratio (ACR) ≥30 mg/g for at least 3 consecutive months during the past 12 months
The big change is obvious – the new ratings are largely determined by the GFR – the “Glomerular filtration rate.”
GFR is a laboratory blood test that measures how much blood passes through tiny filters in your kidneys called “glomeruli.”
Basically, the GFR is a rate of filtration – the higher the rate, the more renal function you have, and vice versa.
The VA has indicated that it will accept GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR for rating purposes, because its believe is that “for VA disability evaluation purposes, GFR, eGFR, and ACR values present adequate measurements of functional impairment due to kidney disease.” See 86 FR 54081 – 54089 (September 30, 2021).
So, on the face of the new regulation, the VA appears to be making the rating of renal dysfunction more “objective.”
Here’s the problem, though – notice the use of “eGFR” – estimated GFR rates. Particularly creatinine based eGFR rates.
Basically, the eGFR is a mathematical test to estimate the GFR based on a veteran’s creatinine serum and … drum roll…. the veteran’s age, sex, and race.
Since 1999, misguided medical research propagated the unsubstantiated theory that estimated GFR calculations underestimate the flow rate in “African-Americans” – how that could be, medically, is anyone’s guess, since race isn’t a biological function, and its
Regardless, doctors have adjusted estimated GFR rates upwards (symbolizing better kidney function) to account for this unsubstantiated underestimation of the severity (or presence) or kidney problems in Black Americans.
So, to the extent an eGFR test of creatinine serum uses a race-based adjustment, it is discriminatory against Black veterans and veterans of color – it uses an imaginary social construct (race) to “tweak” a medical measurement (kidney filtration rate).
The VA’s use of this test is a most devious type of institutionalized white supremacy:
By using a superficially objective criteria like creatinine based eGFR, the VA has plausibility deniability. They can rate white veterans’ renal dysfunction higher than Black veterans by using a statistic that artificially skews kidney filtration rates downward for white Veterans. The lower eGFR results in a higher rating for white veterans and a lower rate for Black veterans, all while appearing on the surface to be race-neutral and objective.
The big question for Black veterans is this: when the VA rates you under the new Renal Dysfunction regulations, have they discriminated against you?
Hard to know without information. So, if you are a veteran and believe your renal dysfunction rating does not accurately reflect the severity of your disability, ask the VA to:
- Produce evidence that shows exactly how they calculated your GFR or eGFR rate;
- Specifically ask if their GFR or eGFR calculation included any race, age, or ethnicity based adjustment and, if so, what that adjustment was;
- Specifically ask if they used serum creatinine or cystatin C to calculate the eGFR (the later is more precise, and doesn’t appear to include a race adjustment).
If you ask for this information, the Duty to Assist requires that the VA produce it to you. They don’t think they do, and they will initially ignore your request, so you may have to contact an attorney with experience at the CAVC and Federal Circuit to push back on the VA’s non-responsiveness.
My law firm – which is completely separate from the Veterans Law Blog® – is currently evaluating cases to challenge this new regulation’s application to Black veterans.
If you want us to look at your case, fill out a consultation request form at this link – and be sure to specifically mention that you feel your ‘renal dysfunction’ rating was lowballed by using a race-adjustment in the VA’s estimated GFR rate.
Should the VA use the OLD rating criteria or the NEW rating criteria?
As a general rule, when a regulation changes while your claim is pending, the VA is supposed to use the version most favorable to you unless doing so would have an impermissible retroactive effect.
It’s that phrase that begins with “unless” that is going to make things hard in cases where the new rating criteria yield a higher rating to claims pending prior to the effective date.
That is controlled by the VA’s intent – a Court is going to have to assess whether or not the VA intended the new ratings to have retroactive applicability.
When you look for an attorney to help you on this one, you are going to want to look for attorneys who have experience litigating statutory and regulatory interpretation issues before the US Court of Appeals for Veterans Claims (CAVC) and the US Court of Appeals for the Federal Circuit.