Citation Nr: 1801170 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial compensable rating for diabetic nephropathy with hypertension, prior to November 16, 2012, and in excess of 60 percent thereafter. ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 201 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which granted service connection for diabetic neuropathy with hypertension and granted a noncompensable rating effective August 19, 2011. During the appeal, in a March 2017 rating decision, the RO increased the Veterans disability rating to 60 percent, effective November 16, 2012. As this is not a full grant of the benefit sought on appeal, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35(1993). The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT Throughout the period of the claim, the Veteran's diabetic nephropathy with hypertension has been manifested by definite decrease in kidney function; however, it has not been manifested by persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80 mg percent; or creatinine 4 to 8 mgpercent; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation or exertion. CONCLUSIONS OF LAW 1. Prior to November 16, 2012, the criteria for an initial rating of 60 percent, but not higher, for diabetic nephropathy with hypertension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Codes 7101-7541 (2017). 2. From November 16, 2012 forward, the criteria for a rating in excess of 60 percent for diabetic nephropathy with hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Codes 7101-7541 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). Regarding VA's duty to notify, an October 2011 VCAA letter notified the Veteran of the information and evidence needed to substantiate his claim and of his and VA's respective duties for obtaining evidence. Accordingly, VA satisfied its duty to notify. The record reflects that the Veteran's VA treatment records and private treatment records have been obtained, to the extent they have been identified by the Veteran. The Veteran has also been afforded appropriate VA examinations in relation to his claims. Further, the Veteran has not identified any outstanding evidence that could be obtained to further substantiate his claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. II. Legal Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Under 38 C.F.R. § 4.115, "separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities." However, where absence of a kidney is the sole renal disability, or where a chronic renal disease has progressed to the point where regular dialysis is required, any coexisting hypertension or heart disease will be separately rated. 38 C.F.R. § 4.115. In this case, the evidence of record does not demonstrate either absence of a kidney or that regular dialysis has been required. Accordingly, granting separate ratings for the Veteran's renal dysfunction and hypertension is not allowed. 38 C.F.R. § 4.115, see also 38 C.F.R. § 4.14. The Veteran's diabetic nephropathy is rated under Diagnostic Code 7541 which instructs that renal involvement in diabetes mellitus is to be rated under the criteria for renal dysfunction. 38 C.F.R. § 4.115b. Under the criteria for rating renal dysfunction, a noncompensable rating is warranted when there is albumin and casts with a history of acute nephritis, or hypertension is noncompensable under Diagnostic Code 7101. 38 C.F.R § 4.115a. A 30 percent rating is warranted for 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 is warranted where there is 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 requires persistent edema and albuminuria with BUN 40 to 80 mg percent, or, creatinine 4 to 8 mg percent, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent evaluation is assigned 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 80 mg percent, or, creatinine more than 8 mg percent, or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Albuminuria is also known as proteinuria and is the presence of an excess of serum proteins in the urine. Booton v. Brown, 8 Vet. App. 368, 369 (1995). Diagnostic Code 7101 provides ratings for hypertensive vascular disease. In order to obtain a 10 percent rating under Diagnostic Code 7101, the evidence must show diastolic blood pressure readings that are predominantly 100 or higher, or systolic pressure readings that are predominantly 160 or higher. A 10 percent rating is also the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or higher, who requires continuous medication for control. Furthermore, a 40 percent rating is warranted where the evidence shows diastolic blood pressure readings that are predominantly 120 or higher. See 38 C.F.R. § 4.104. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 IV. Factual Background and Analysis The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks entitlement to an increased rating for his diabetic nephropathy with hypertension, evaluated as 0 percent disabling from August 19, 2011 to November 16, 2012, and as 60 percent disabling thereafter. For the period prior to November 16, 2012, the evidence of record is supportive of a disability rating of 60 percent, but not higher, for the Veteran's diabetic nephropathy with hypertension. As discussed hereunder, the record shows that the Veteran has had a definite decrease in kidney function throughout the period of the claim, which has been evidenced by persistently elevated levels of blood urea nitrogen (BUN) and low estimated glomerular filtration rates (eGFR). Private treatment records dated September 2009 show a creatinine level of 1.4 mg/dl, a BUN of 26 mg/dl, and an eGFR of 54.2 ml/min. Similarly, diagnostic testing from September 2010 showed a creatinine level of 1.4 mg/dl, a BUN level of 35 mg/dl, and an eGFR of 54.1 ml/min. Further, diagnostic testing performed in May 2011 showed a creatinine level of 1.5 mg/dl, a BUN level of 34 mg/dl, and an eGFR of 49.9 ml/min. The Veteran was afforded a VA diabetes examination in October 2012. Diagnostic testing performed during this examination, showed a creatinine level of 1.4 mg/dl, a BUN of 28 mg/dl, and an eGFR of 51 ml/min. The examiner stated that the Veteran had diabetic nephropathy or renal dysfunction, which was caused by the Veteran's diabetes mellitus. Furthermore, the examiner noted that the Veteran had not had progressive unintentional weight loss or progressive loss of strength attributable to his diabetes mellitus. Additionally, the examiner reported that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. The Veteran was also afforded a VA kidney examination in November 2012. The examiner stated that the Veteran had renal dysfunction, evidenced by GFRs persistently under 60 ml/min. Nevertheless, the examiner stated that the Veteran did not exhibit any signs or symptoms related to his renal dysfunction, and did not require regular dialysis. In addition, the examiner stated that the Veteran's renal dysfunction was not productive of proteinuria, edemas, generalized poor health, lethargy, weakness, anorexia, weight loss, limitation of exertion, or markedly decreased function of other organ systems. Furthermore, the examiner concluded that the Veteran's kidney condition did not affect his ability to work. Based on the foregoing, the Board has determined that for the period prior to November 16, 2012, the evidence is at least in equipoise as to whether the Veteran has had a definite decrease in kidney function. Accordingly, the Board finds that for the period prior to November 16, 2012, the Veteran's diabetic nephropathy with hypertension warrants a disability rating of 60 percent, but not higher, under Diagnostic Code 7541. The evidence of record indicates that a disability rating in excess of 60 percent for the Veteran's diabetic nephropathy with hypertension has not been warranted at any time during the period of the claim. In order to obtain a disability rating of 80 percent, which is the next higher rating under Diagnostic Code 7541, the record must demonstrate persistent edema and albuminuria with BUN 40 to 80mg percent; or, creatinine of 4 to 8mg percent; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 38 C.F.R. § 4.115a. Although VA treatment records from November 2012 to July 2016 indicate that the Veteran has had some edemas and albuminuria, the Veteran has not had a creatinine level of at least 4 mg percent, or a BUN level of at least 40 mg percent, and has not exhibited generalized poor health. As discussed above, for the period prior to November 16, 2012, the Veteran's creatinine level ranged from 1.4 to 1.5 mg/dl, and his BUN level ranged from 26 to 35 mg/dl. In November 2013 and February 2014, VA treatment records showed creatinine levels of 1.7 mg/dl and 1.8 mg/dl, respectively. Further, VA treatment records from May 2016 to July 2016 showed creatinine levels ranging between 1.9 mg/dl and 2.3 mg/dl. The Veteran was afforded an additional VA examination in March 2017. Diagnostic testing performed during this examination showed a creatinine level of 2.3 mg/dl, and a BUN level of 37 mg/dl. The examiner stated that the Veteran's renal dysfunction had been evidenced by persistent proteinuria and some edema, but the Veteran had not required regular dialysis. In addition, the examiner stated that the Veteran's renal dysfunction had been productive of asymptomatic hypertension, which had been treated with medication. Further, the examiner noted that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or higher. Moreover, the examiner concluded that the Veteran's hypertension and kidney condition did not affect the Veteran's ability to work. Based on the foregoing, the Board determines that a disability rating in excess of 60 percent for the Veteran's diabetic nephropathy with hypertension has not been warranted at any time during the period of the claim. The above-described medical evidence of record is not supportive of persistent edema and albuminuria with BUN of at least 40 mg percent; or creatinine of at least 4 mg percent; or generalized poor health. See 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7541. Consideration has been given to assigning a staged rating for the disability decided herein, but for the reasons explained above the Board has determined the assigned rating is warranted throughout the entire rating period. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has found that a preponderance of the evidence weighs against the Veteran's claim. As such, the doctrine is inapplicable and the claim must be denied. ORDER For the period prior to November 16, 2012, a disability rating of 60 percent, but not higher, is granted for diabetic nephropathy with hypertension, subject to the criteria applicable to the payment of monetary benefits. For the period from November 16, 2012 forward, a disability rating in excess of 60 percent for diabetic nephropathy with hypertension is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs