Citation Nr: 18144561 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-36 158 DATE: October 24, 2018 ORDER Entitlement to an initial rating in excess of 60 percent for diabetic nephropathy is denied. Entitlement to an initial compensable evaluation for erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran’s diabetic nephropathy does not result in persistent edema and albuminuria with blood urea nitrogen (BUN) 40-80 mg percent, creatinine 4-8 mg percent, generalized poor health, regular dialysis, or limitation to sedentary activities. 2. The Veteran’s service-connected erectile dysfunction has not manifested as any penile deformity. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 60 percent for diabetic nephropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.115b, Diagnostic Code 7541 (2017). 2. The criteria for an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his diabetic nephropathy and erectile dysfunction. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. 1. Diabetic Nephropathy In this case, the RO granted service connection for diabetic nephropathy and assigned an initial 60 percent disability evaluation, effective September 29, 2015 under Diagnostic Code 7541 as renal dysfunction due to diabetes. Under Diagnostic Code 7541, 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. A maximum 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 refers to the presence of albumin, a protein, in the urine. Dorland’s Illustrated Medical Dictionary 45 (32nd ed. 2012). Generally, a urine sample containing more than 30 milligrams of albumin suggests albuminuria. See http://www.ncbi.nlm.nih.gov/ pubmed/15538104 (last visited February 14, 2017). 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). Factual Background and Analysis The Veteran underwent a VA examination in October 2004. The examiner noted that the Veteran had blood work done in January 2004. His BUN was 26mg percent and his creatine was 1.1mg percent. A May 2012 VA treatment report noted that the Veteran’s BUN was 25 mg percent and his creatine was 1.4 mg percent. A November 2011 VA treatment report noted that the Veteran’s BUN was 29 mg percent and his creatine was 1.7 mg percent. A March 2012 VA treatment report noted that the Veteran’s BUN was 25 mg percent and his creatine was 1.7 mg percent. An August 2013 VA treatment report noted that the Veteran’s BUN was 41 mg percent and his creatine was 1.6 mg percent. The Veteran underwent a VA examination in October 2014. The examiner noted that the Veteran’s diabetes mellitus did not require regulation of his activities as part of medical management. He did not have unintentional weight loss or loss of strength. The Veteran underwent a VA examination in November 2015. The examiner noted that the Veteran’s diabetes mellitus did not require regulation of his activities as part of medical management. He did not have unintentional weight loss or loss of strength. The examiner noted that the Veteran had peripheral nephropathy which an onset of 2011. The Veteran noted no symptoms with diabetic nephropathy as his medication of lisinopril was effective. He had renal dysfunction that did not require regular dialysis. He had persistent albuminuria. He did not have symptomatic renal tubular disorder or frequent attacks of colic with infection. He did not have a history of recurrent urinary tract or kidney infections. His BUN had a high range of 20mg percent and his creatine had a high range of 1.2mg percent. His kidney disability did not impact his ability to work. Considering the pertinent facts in light of applicable rating criteria, the Board finds that an initial evaluation in excess of 60 percent is not warranted for the Veteran’s service-connected diabetic nephropathy disability. As noted above, a rating in excess of 60 percent under Diagnostic Code 7541 is warranted when the record demonstrates 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. There is no evidence, to include history, of generalized poor health due to the kidney disease or creatinine at or above 4 mg percent. In this regard, the Board notes that the most elevated reading for creatinine is 1.7 mg percent and the most recent creatine reading on VA examination in November 2015 was 1.2mg percent. The evidence also does not show that the nephropathy results in limitation to sedentary activity or “markedly decreased” kidney function or other organ function. The Board notes that the there is evidence of peristent proteinuria on the November 2015 VA examination and one BUN level of 41 in August 2013. However, there is no evidence of persistent edema due to the nephropathy. Additionally, as reflected above, the Veteran has not had a creatinine level of at least 4 mg percent and has not exhibited generalized poor health. In sum, the Board finds the criteria for a higher rating are not met. In making this determination, the Board finds the Veteran’s nephropathy most nearly approximates the currently assigned rating, particularly because the record shows that the predominant BUN levels are below 40 and the diminished kidney function and proteinuria are contemplated by the current rating. Accordingly, as the preponderance of the evidence is against the claim for an initial rating in excess of 60 percent for a service-connected peripheral nephropathy disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Erectile Dysfunction In this case, the RO granted service connection for erectile dysfunction and assigned an initial noncompensable evaluation, effective April 24, 2014 under Diagnostic Codes Diagnostic Codes 7599-7522 for penis, deformity, with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31 (2017). Under Diagnostic Code 7522, in order for the Veteran to receive a higher 20 percent rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required. 38 C.F.R. § 4.115b. A footnote to Diagnostic Code 7522 also indicates the disability is to be reviewed for entitlement to special monthly compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350 (a) (2017). In this case, the Veteran is in receipt of SMC for loss of use of a creative organ. The VA Adjudication Procedure Manual confirms that two requirements must be met before a 20 percent evaluation can be assigned for deformity of the penis with loss of erectile power under Diagnostic Code 7522: (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power. Simply stated, the condition is not compensable in the absence of penile deformity. See M21-1, Part III, Subpart iv, Chapter 4, Section I, Paragraph 3.b. (Updated August 17, 2016). Factual Background and Analysis The Veteran underwent a VA examination in October 2014. The examiner noted that the Veteran had erectile dysfunction as a result of his diabetes mellitus which with an onset of 2013. There was no examination per the Veteran’s request but the Veteran reported normal anatomy with no penile deformity or abnormality. The Veteran underwent a VA examination in November 2015. The Veteran reported that his erectile dysfunction had worsened since his previous VA examination as he could not get an erection despite a penile implant. The examiner noted that the Veteran had erectile dysfunction as a result of his diabetes mellitus. There was no examination per the Veteran’s request. In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable evaluation under Diagnostic Code 7522. Notably, the VA medical evidence shows loss of erectile power. However, in order to obtain a compensable rating under Diagnostic Code 7522, deformity of the penis must also be demonstrated. While the Veteran declined to be physically examined on both the October 2014 and November 2015 VA examinations, on the October 2014 examination he specifically reported a normal anatomy with no penile deformity or abnormality. Therefore, the evidence does not show complaint, treatment, or findings of penile deformity. While the medical records as reviewed above clearly indicate that the Veteran is impotent, none of the medical evidence indicates that the Veteran’s penis is actually deformed. Additionally, although the Veteran has indicated that he cannot have intercourse, he has never claimed that he has an actual penile deformity in addition to the erectile dysfunction. Furthermore, with respect to VA benefits, as noted above, SMC for loss of use of a creative organ was granted to compensate the Veteran for his erectile dysfunction. For the reasons stated above, the preponderance of the evidence is against an initial compensable rating for the Veteran’s erectile dysfunction. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. §5107 (b); 38 C.F.R. §§ 3.102, 4.3. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel