Citation Nr: 1317196 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-29 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a separate rating for diabetic nephropathy. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had on active service from April 1973 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). A February 2008 rating decision granted service connection for diabetes mellitus and, granted a total disability evaluation on the basis of individual unemployability (TDIU), effective November 3, 2005. The Veteran appealed the initial rating for her diabetes, which a February 2012 Board decision decided in her favor, awarding a 40 percent evaluation from January 9, 2009. In April 2011, the Board had remanded the case in order to schedule a Board hearing as requested. The Veteran, however, withdrew her request for this hearing in a letter received in November 2011. See 38 C.F.R. § 20.702(e) (2012). In February 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The RO completed the additional development as directed, determined a separate rating for nephropathy was not indicated, and returned the case to the Board for further appellate review. Among the directions in the February 2012 remand was for the RO to issue a statement of the case (SOC) in response to the Veteran's appeal of the denial of her claim for entitlement to service connection for left ankle arthritis; and, for her appeal of the effective date of the award of her TDIU. See 38 C.F.R. §§ 19.29 and 19.30 (2012). The RO issued the SOC in December 2012, as directed. The Board finds no indication in the paper or the Virtual claims file that the Veteran submitted a Substantive Appeal in response to the SOC. See 38 C.F.R. §§ 19.32 and 20.200 (2012). Hence, those issues are not before the Board and will not, except by reference, be addressed in the decision below. As alluded to above, the Veteran has a Virtual VA paperless claims file associated with her appeal. The Board has reviewed the contents of the paperless file, and the records in the Virtual file which are not in the paper claims file were considered by the RO, as noted in the March 2013 supplemental statement of the case (SSOC). Hence, the Board may consider those records without the necessity of a waiver or a remand. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The RO complied with the February 2012 remand by issuing a SOC, and by arranging a VA examination as directed in the remand. 2. The preponderance of the evidence of record shows the disorders associated with the Veteran's diabetes do not currently include diabetic nephropathy. CONCLUSION OF LAW The requirements for a separate rating for renal nephropathy associated with service-connected diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.119, Diagnostic Code (DC) 7913 Note (1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned for the Veteran's diabetes mellitus, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. As noted earlier, the Board remanded for an examination to determine if the Veteran's diabetes manifests with an associated disease. She was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting her that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Law and Regulation Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. DC 7913 addresses diabetes mellitus. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119. Analysis Turning to the appropriate rating criteria, renal dysfunction that requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or blood urea nitrogen bunion (BUN) more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular, is assigned a 100 percent evaluation. Renal dysfunction manifested by 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, warrants an 80 percent disability rating. A 60 percent disability rating is warranted for renal dysfunction resulting in constant albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under DC 7101. A 30 percent disability rating is warranted for renal dysfunction manifested by constant or recurring albumin 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 noncompensable evaluation is assigned for renal dysfunction evidenced by albumin and casts with a history of acute nephritis, or hypertension that is non-compensable under DC 7101. 38 C.F.R. § 4.115. The February 2012 Board remand noted a June 2007 letter from the Veteran's primary care provider stating the disorders the Veteran was being treated for included microalbuminuria. An August 2007 VA outpatient entry noted positive nephropathy but also noted the Veteran's creatinine was stable. In any event, as earlier noted, the Board remanded for an examination to determine if the Veteran in fact has nephropathy due to her diabetes. The January 2013 VA examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted that the available records did not indicate a history of a kidney condition, but the Veteran was prescribed Losartan 100 mg a day for kidney protection as part of her diabetes treatment. The examiner noted negative answers for all of the questions related to renal dysfunction, and also noted the Veteran's hypertension is not due to renal dysfunction. The examiner noted a November 2012 laboratory report noted BUN of 23, and creatinine of 0.9. A May 2012 urinalysis revealed no hyaline, granular casts, red blood cells, or proteinuria. The examiner noted the examination and laboratory results revealed no symptoms of renal dysfunction or evidence of diabetic nephropathy. The Board also notes that a September 2011 letter from the Veteran's primary care provider did not list nephropathy among the disorders for which she was under treatment. Further, the Veteran's VA outpatient records through December 2012 do not list nephropathy among her active disorders. Thus, while the Veteran has at times manifested edema, and her hypertension is evaluated as at least 10 percent disabling, the medical evidence of record shows no active renal dysfunction. In light of the above, the Board finds the preponderance of the evidence shows a separate rating for renal dysfunction associated with service-connected diabetes, to include nephropathy, is not indicated. 38 C.F.R. §§ 4.1, 4.119, DC 7913; Id., Note (1); § 4.115. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a separate rating for diabetic nephropathy is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs