Citation Nr: 1805969 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-03 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a disability rating in excess of 60 percent for service-connected diabetic nephropathy. REPRESENTATION Appellant represented by: Francis P. Kehoe, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had honorable active military service from May 1978 to May 1983. This matter returns to the Board of Veterans' Appeals (Board) from remand of on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran's appeal was last before the Board in August 2017 at which time it denied the Veteran's claim seeking a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II, (diabetes) with erectile dysfunction and diabetic retinopathy with right eye macular edema, but remanded the issue of whether the Veteran was entitled to a separate compensable disability rating for service-connected diabetic nephropathy for additional development. The requested development was completed and, in a November 2017 rating decision, the RO granted a 60 percent disability rating effective January 7, 2017 (the date service connection was established in a March 2017 rating decision) for the Veteran's diabetic nephropathy. The appeal has been returned to the Board for final adjudication. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran's claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDING OF FACT Although the medical evidence during the relevant rating period shows the Veteran's BUN ranged from 40 to 80 and that he had microalbuminuria, it does not demonstrate that the Veteran's diabetic nephropathy was productive of creatinine of 4 mg% or greater or persistent edema or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 60 percent for service-connected diabetic nephropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.115b, Diagnostic Code 7541 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for diabetic nephropathy was established in a March 2017 rating decision effective January 7, 2017 and evaluated as noncompensable on the basis that the VA treatment showed this was the date that the Veteran's nephropathy was diagnosed and that the treatment records showed it was stable. However, in its August 2017 decision, based on evidence showing elevated creatinine and BUN levels and lower eEGR's (estimated glomerular filtration rate), the Board questioned whether this evidence was indicative of "definite decrease in kidney function," which, if so, would warrant a 60 percent disability rating. Finding that additional development was required to answer that question, the Board bifurcated the issue of whether a separate compensable disability rating was warranted for the Veteran's service-connected diabetic nephropathy and remanded it. In October 2017, the Veteran was examined for purposes of determining the level of severity of his diabetic nephropathy. He reported that his renal functioning is being closely followed but he is asymptomatic, not currently on medication, and does not require dialysis for this condition. He denied loss of function in daily activity or work or physical activity secondary to his nephropathy. The examiner opined, however, that his diabetic nephropathy is productive of "definite decrease in kidney function" based upon his last laboratory results on August 18, 2017 that shows a decreased GFR to 37.8 ml/min. Diabetic nephropathy is evaluated under Diagnostic Code 7541, which indicates to rate as renal dysfunction. Under 38 C.F.R. § 4.115a, renal dysfunction will be awarded a noncompensable (0 percent) disability rating where a veteran has albumin and casts with a history of acute nephritis; or, hypertension noncompensable under diagnostic code 7101. A 30 percent rating is warranted where a veteran has 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 a veteran has 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 where a veteran has persistent edema and albuminuria with BUN 40 to 80 mg% 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 where the Veteran requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. As noted above, the RO awarded a 60 percent disability rating for the Veteran's diabetic nephropathy on remand. This disability rating was based upon the VA examiner's opinion that the August 2017 laboratory findings showing a decreased GFR to 37.8 ml/min is indicative of a definite decrease in kidney function. The RO also noted that the Veteran's VA treatment records noted elevated creatinine levels outside the normal range in November 2015 and October 2016 and that the GFR rate was outside the normal range in November 2015, October 2016, February 2017, June 2017 and most recently in August 2017. Consequently, although a diagnosis of diabetic nephropathy was not established until January 2017, the RO stated it resolved reasonable doubt in the Veteran's favor that his definite decrease in kidney functioning was present at the time of his diagnosis based on his overall laboratory findings. Thus, the 60 percent disability rating was assigned an effective date of January 7, 2017, the date the RO awarded service connection in the March 2017 rating decision. The Veteran was notified of the RO's decision in a November 2017 rating decision and a Supplemental Statement of the Case. In December 2017, he was advised his appeal was returned to the Board. At this time, however, neither the Veteran nor his representative has submitted any correspondence or additional information or evidence regarding the RO's decision. After reviewing the medical evidence, the Board finds that a disability rating higher than 60 percent is not warranted during the relevant rating period, which is from January 7, 2017 to the present. Laboratory tests show the Veteran's creatinine was generally within normal limits but was never higher than 1.8 during the relevant rating period, which is clearly not in excess of the 4 mg% to meet the 80 percent criterion. Laboratory tests show the Veteran's BUN ranged from 13 to 52 mg/dL during the relevant rating period. The Board acknowledges this is in the range of 40 to 80 mg%, which is an 80 percent criterion. The medical evidence also shows the Veteran has had positive microalbuminuria laboratory findings since February 2003 and such was continued to be shown on laboratory tests in August 2017. However, the Veteran's treatment records from January 2017 to October 2017 show there were only objective findings of trace edema of the bilateral lower extremities in February 2017, June 2017 and September 2017. He consistently denied having edema. Thus, the Board finds that the evidence of trace edema every few months in no way can be said to show the Veteran had "persistent edema." As the rating criteria for 80 percent require both persistent edema and albuminuria be present, the Board finds that the evidence fails to demonstrate the Veteran's disability picture is consistent with the rating criteria for an 80 percent disability rating. Furthermore, the Board does not find that the evidence demonstrates the Veteran was in generalized poor health characterized by lethargy, weakness, anorexia weight loss, or limitation of exertion, or that he was precluded from more than sedentary activity from persistent edema and albuminuria, a BUN more than 80 mg% or markedly decreased function of the kidney or other organ systems, especially cardiovascular. In fact, at the VA examination, the Veteran denied any such restrictions stating he is asymptomatic due to this condition and has no loss of function in his daily activity or work or physical activity secondary to his nephropathy. In addition, his VA treatment records show he continues to work out at the gym (which is recommended for his diabetes and heart disease) and to work full-time in a factory (including overtime). Therefore, after considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 60 percent is warranted for the Veteran's service-connected diabetic nephropathy. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's claim is, therefore, denied to that extent only. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a disability rating in excess of 60 percent for service-connected diabetic nephropathy is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs