Citation Nr: 1330921 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 04-28 658A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes and nephropathy. 2. Entitlement to an initial compensable evaluation for nephropathy prior to March 24, 2011. 3. Entitlement to an evaluation in excess of 60 percent for nephropathy from March 24, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the Board in September 2011. A transcript of this hearing is in the claims folder. The Board has reviewed the Veteran's electronic record (Virtual VA and VBMS) prior to rendering a decision in this case. Virtual VA includes July 2013 opinions regarding the Veteran's claim for service connection for hypertension that were received subsequent to the most recent supplemental statement of the case. There is no indication that the Veteran has waived initial RO consideration of this evidence; however, because the decision pertaining to service connection for hypertension will be favorable to the Veteran, the Board may proceed with adjudication of this appeal without fear of prejudice to his claim. Virtual VA does not include any evidence regarding the evaluation of the Veteran's nephropathy not already in the claims folder or considered by the RO. The evaluation of the Veteran's service-connected nephropathy was increased to 60 percent during the course of this appeal, effective from March 24, 2011. He has not expressed satisfaction with this evaluation. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Furthermore, the effective date of the 60 percent evaluation does not encompass the entire period on appeal. Therefore, the claim for an increased evaluation for nephropathy remains on appeal. It is now characterized as two separate issues for the sake of convenience. FINDINGS OF FACT 1. In a July 2013 VA medical opinion, the examiner found that the Veteran's uncontrolled hypertension was complicated by his service connected diabetes mellitus and chronic renal disease. 2. Prior to May 10, 2007, the Veteran's nephropathy was productive of occasional findings of albumin, with no evidence of hyaline and granular casts or red blood cells; or edema or hypertension that was at least 10 percent disabling. 3. As of May 10, 2007, the evidence shows that the Veteran had edema of the lower extremities down to the shin; there was no evidence of constant albuminuria, a definite decrease in kidney function, or hypertension that was at least 40 percent disabling. 4. As of March 24, 2011, the creatinine shown on repeated urinalysis constitutes evidence of a definite decrease in kidney function; without evidence of BUN of 40 to 80mg%; creatinine 4 to 8mg%; generalized poor health, dialysis, or markedly decreased function of kidney or other organ systems. CONCLUSIONS OF LAW 1. The Veteran's hypertension was aggravated by his service-connected diabetes and nephropathy, and the criteria for service connection have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for entitlement to an initial compensable evaluation for nephropathy prior to May 10, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.27, 4.115a, 4.116, Code 7541 (2013). 3. The criteria for a 30 percent evaluation, but no higher, for nephropathy have been met from May 10, 2007 to March 23, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.27, 4.115a, 4.116, Code 7541 (2013). 4. The criteria for entitlement to an evaluation in excess of 60 percent for nephropathy from March 24, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.27, 4.115a, 4.116, Code 7541 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Board will issue a favorable decision in regards to the Veteran's claim for service connection for hypertension. Therefore, any failure in the duty to notify or duty to assist is harmless error. Regarding the claim for an increased evaluation for nephropathy, the Veteran's representative argued at the September 2011 hearing that the duty to notify had not been met, and that this had resulted in prejudice in that the Veteran was not notified of an opportunity to submit additional evidence. This appeal, however, arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, the record shows that the Veteran was provided a VCAA letter in May 2008 that provided the Veteran with notification as to how VA determines the rating disability in his claim. This letter specifically notified the Veteran that he could submit additional evidence, and included a response form so that he could indicate whether or not he intended to submit additional evidence. The Board finds that the duty to notify has been met. As for the duty to assist, the Veteran's service treatment records have been obtained. Private medical records and VA treatment records are in the claims folder. The Veteran has offered testimony at a hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is in the record. He was afforded appropriate VA examinations that include the information required to evaluate the Veteran under the appropriate rating criteria. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran contends that he has hypertension as a result of active service. He argues that he either first developed hypertension in service as a result of a shrapnel wound to his left flank, or that hypertension was incurred secondary to his service-connected kidney disability. The Veteran believes that he has had hypertension since sometime in the 1970s. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If cardiovascular-renal disease, including hypertension, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of hypertension during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. This method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994)(distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The service treatment records are negative for evidence of hypertension. July 1969 records show that the Veteran was treated for a missile wound to the left flank. The Veteran's blood pressure was 136/80 on his separation examination. The Veteran was provided a VA examination in September 1970. His blood pressure was 120/76. There was no diagnosis of hypertension. The initial evidence of hypertension is found in employment records dated in August 1987. A June 1990 private medical examination notes that the Veteran sustained shrapnel wound to the left kidney in 1969 in Vietnam. Some shrapnel had been removed at that time, and more had been removed in 1971. It was noted that testing in 1972 and 1982 had revealed some residual scarring but otherwise there was no renal damage. On examination, blood pressure was 156/98. The diagnoses included hypertension. In September 2003, the Veteran's private doctor wrote that he has been treating the Veteran for hypertension since 1988. VA and private medical records show continued treatment for hypertension since that time. A March 2004 VA examiner reports the Veteran's belief that he had had hypertension since he was in service due to having experienced headaches and back pain; however, the records did not reflect hypertension, and the examiner noted that headaches and back pain were not diagnostic of hypertension. The examiner opined that based on the facts that there was no sign of arterial involvement in a 1995 Doppler study and that hypertension was diagnosed several years before diabetes, he did not feel the hypertension was a result of having diabetes. In a July 2013 opinion, a VA examiner reviewed the claims folder and opined that the hypertension was less likely than not due to or the result of the Veteran's service-connected condition. The examiner believed that the records strongly suggested that the Veteran had secondary hypertension secondary to his undiagnosed obstructive sleep apnea. This examiner, however, also opined that she could "state with 50% or more probability that the veteran's poorly controlled hypertension since the 70s was probably secondary to his undiagnosed and untreated OSA complicated by diabetes mellitus and chronic renal disease." The Board finds that the evidence does not support entitlement to service connection for hypertension on either a direct or presumptive basis. There is no evidence of hypertension during service or during the first year following discharge from service. The Veteran's reports of continuity of symptomatology since the 1970s are not supported by the evidence, and the Veteran is not competent to report that he has experienced hypertension since the 1970s based on having experienced headaches and back pain, as noted by the March 2004 VA examiner. His current diagnosis of hypertension has not been related to active service by any competent medical professional. The Board, however, does find that entitlement to service connection for hypertension as secondary to the Veteran's service-connected disabilities is warranted. The record shows that service connection for diabetes mellitus and diabetic nephropathy has been in effect since December 2000. The March 2004 VA examiner did not believe that hypertension had developed secondary to the Veteran's diabetes mellitus, as hypertension pre-existed the diabetes mellitus. The July 2013 VA examiner, however, opined that the Veteran's hypertension was "complicated by diabetes mellitus and chronic renal disease." As noted above, secondary service connection may be established for a disability which is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, entitlement to service connection for hypertension as secondary to the Veteran's service-connected diabetes mellitus and chronic renal disease is established. Increased Evaluation The Veteran contends that the initial evaluation assigned to his service connected nephropathy should be compensable. He argues that the laboratory findings support a compensable rating. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection. The Court has found that there is a distinction between a Veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). As in the claim for service connection, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of this matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The record shows that entitlement to service connection for a kidney condition was established in a March 2002 rating decision; however, this disability was initially evaluated as part of the Veteran's service-connected diabetes mellitus. The effective date was December 12, 2000. The Veteran submitted a notice of disagreement with this evaluation in July 2002, and the current appeal was initiated. An August 2012 rating decision assigned a separate evaluation for diabetic neuropathy associated with diabetes mellitus type II. This decision established a zero percent rating effective from the original December 12, 2000, effective date, and a 60 percent evaluation from March 24, 2011. The Veteran's diabetic neuropathy associated with diabetes mellitus was originally evaluated under 38 C.F.R. § 4.119, Code 7913. Note (1) to this rating code states evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Currently, the Veteran's diabetic nephropathy is evaluated as a residual condition of the service connected diabetes mellitus. See 38 C.F.R. § 4.27. The rating code for renal involvement in diabetes mellitus states that this disability is to be evaluated as a renal dysfunction. 38 C.F.R. § 4.116, Code 7541. In evaluating renal dysfunction, a noncompensable (zero percent) evaluation is warranted for evidence of albumin and casts with history of acute nephritis; or, hypertension noncompensable under Diagnostic Code 7101. A 30 percent rating is warranted for constant albumin 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 is warranted for 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 is warranted for renal dysfunction with 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. A 100 percent rating is warranted for renal dysfunction 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. See 38 C.F.R. § 4.115a . A December 2000 letter from the Veteran's private doctor says that the only known complication to the Veteran's diabetes mellitus was urinary microalbuminuria, which was being treated with anti-hypertensive medications. A second December 2000 form from the Veteran's doctor contains the handwritten notation "Early signs of damage to kidney (protein leakage)." Laboratory reports from this period are negative for any relevant findings in addition to albumin. The Veteran was provided a VA fee basis medical examination in January 2002. He was well-developed, well-nourished and in no acute distress. The Veteran weighed 190 pounds. Blood pressure was 162/90, 164/96, and 156/92. He had a history of shrapnel wound to the left kidney as well as diabetes mellitus. He had never required dialysis. The Veteran gave a history of some protein in his urine but he was not sure if it was due to the diabetes or not. On examination, there was no edema. Urinalysis showed protein was 2+ (negative). The diagnoses included proteinuria. The discussion said that the Veteran did have proteinuria which could be due to diabetes but there was no sign of edema. The Veteran was provided another VA fee basis internal medicine evaluation in March 2004. Regarding nephropathy, he gave a history of protein leakage. There had been no hospitalization in the past 12 months, and he had never been on dialysis. The Veteran denied any functional impairment or time lost from work due to this. On examination, the Veteran weighed 193. His blood pressure was 130/70 on all three readings. There was no edema. He appeared well-developed, well-nourished, and in no acute distress. The urinalysis was negative for albumin or other relevant findings. The diagnoses included nephropathy. A May 2005 urinalysis did not contain any abnormal findings. The Veteran's blood pressure was 143/76 in June 2005. The assessment included hypertension, usually at goal, runs 120s/70-80s. A May 10, 2007 VA examination report states that the Veteran was suffering from diabetes mellitus and nephropathy not related to diabetes. The kidney problem had resulted in complications of swelling of the legs, weakness, high blood pressure, and limitation of exertion. The problem had been addressed with surgeries in 1969 and 1971. The examiner stated that the Veteran was not on dialysis and did not have any functional impairment due to this condition. On examination, the Veteran's blood pressure was 138/80; 160/80, and 130/80. He was well developed, well nourished, and in no acute distress. He weighed 187 pounds. The extremities had bilateral pitting edema to the shins. The urinalysis showed a presence of sugar, but was absent for protein, hyaline casts, red blood cells, or granular casts. The diagnosis included nephropathy. The most recent VA examination of the Veteran's nephropathy was conducted in August 2011. He reported a weight gain of 15 pounds since his last visit to the doctor. He described progressive loss of strength in his arms and legs. His reported symptoms included swelling of the legs and high blood pressure. He did not report poor appetite, weakness, extreme fatigue or limitation of exertion. He was not on dialysis. On examination, the Veteran weighed 207 pounds. His blood pressure readings were 190/80, 194/80, and 190/80. He was well developed, well nourished, in no acute distress, and showed no signed of malaise. Edema was located in both lower extremities, including the feet. The urinalysis showed the presence of protein and red blood cells. There was no sugar, hyaline casts, or granular casts. Laboratory reports dating from February 8, 2012, to June 8, 2012, show that the Veteran had BUN of 40mg on March 13, 2012, but it was only 29 on March 20, 2012. The BUN was below 40 on all testing before and after March 13, 2012. The Board finds that the evidence does not support entitlement to a compensable evaluation prior to May 10, 2007. The only finding relating to his nephropathy during this period was albumin or protein in the urinalysis, and testing in March 2004 and May 2005 was negative for even this finding. There was no evidence of hyaline or granular casts, red blood cells, or edema prior to May 10, 2007. Edema was not shown during this period. Finally, the Veteran did not have hypertension that would be at least 10 percent disabling under 38 C.F.R. § 4.104, Code 7101 (Diastolic pressure predominately 100 or more; systolic pressure predominately 160 or more; or a history of diastolic pressure of 100 or more who requires continuous medication for control). None of the blood pressure readings during this period show a diastolic pressure of over 100, and there are only two readings of nine that are over 160 for the systolic. 38 C.F.R. § 4.115a, 4.116, Code 7541. The Board, however, finds that a 30 percent evaluation for nephropathy is proper as of May 10, 2007, and through March 24, 2011. The examination conducted on May 10, 2007, showed edema down to the shins. Transient or slight edema merits a 30 percent rating. The Board has considered entitlement to an evaluation in excess of 30 percent, but this is not supported by the evidence. The records for this period do not show a definite decrease in kidney function or hypertension that is at least 40 percent disabling under 38 C.F.R. § 4.104, Code 7101 (Diastolic pressures that are predominately 120 or more). The urinalysis conducted at that time was negative for protein, and there were no diastolic pressures over 80. There was also no evidence of generalized poor health or dialysis. 38 C.F.R. § 4.115a, 4.116, Code 7541. Finally, the Board finds that entitlement to an evaluation greater than 60 percent from March 24, 2011 is not shown by the evidence. The Veteran's BUN was briefly at exactly 40 on March 13, 2012, but it was only 29 on March 20, 2012. Prior testing in February 2012 and testing subsequent to March 20, 2012 have all shown BUN to be well below 40. The evidence does not show creatine between 4 to 8mg% or poor health, and in fact the Veteran gained weight during this period. The Veteran has never required dialysis. The requirements for a rating in excess of 60 percent have not been met. 38 C.F.R. § 4.115a, 4.116, Code 7541. Other Considerations Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2011); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The scheduler criteria adequately describe the Veteran's symptoms for his nephropathy. These symptoms include edema and abnormal findings on urinalysis. There are no symptoms attributed to the Veteran's nephropathy in the medical evidence that are not included in the rating criteria. Moreover, even if the scheduler criteria were to prove inadequate, there is no record of marked interference with employment due to these service connected disabilities. He has not been hospitalized for nephropathy, and examiners, to include the August 2011 VA examiner, have reported that the effect of this disability on the Veteran's occupation is none. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, the Board has considered whether or not a claim for entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, and finds that it has not. The Board recognizes that the Veteran has a very high combined evaluation of 90 percent for his service connected disabilities. However, there is no evidence that he has claimed to be unemployable due to his service connected disabilities, and a May 2008 VA post-traumatic stress disorder examination shows that he is employed at a VA hospital. The Veteran was forwarded a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability in August 2012 but there was no indication in either the claims folder or the electronic record that this was returned. In the absence of any indication that the Veteran claims to be unemployable, further consideration of TDIU is not necessary. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to service connection for hypertension, to include as secondary to service connected diabetes and nephropathy, is granted, subject to the laws and regulations that govern the award of monetary benefits. Entitlement to an initial compensable evaluation for nephropathy prior to May 10, 2007, is denied. Entitlement to a 30 percent evaluation for nephropathy from May 10, 2007, to March 23, 2011, is granted, subject to the laws and regulations that govern the award of monetary benefits. Entitlement to an evaluation in excess of 60 percent for nephropathy from March 24, 2011, is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs