Citation Nr: 1822384 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 08-38 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to increased ratings for diabetic nephropathy, evaluated as 30 percent disabling prior to November 10, 2015, and as 80 percent disabling from that date. 2. Entitlement to an initial rating in excess of 30 percent for right upper extremity peripheral neuropathy with carpal tunnel syndrome. 3. Entitlement to an initial rating in excess of 20 percent for left upper extremity peripheral neuropathy with carpal tunnel syndrome. 4. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU) prior to November 10, 2015. REPRESENTATION Appellant represented by: Robert V. Chisolm, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968. This matter came before the Board of Veterans' Appeals (Board) from January 2008, December 2008, and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In August 2015, the Board reopened a claim of entitlement to service connection for left lower extremity peripheral neuropathy and denied that claim on its merits, and denied higher evaluations for diabetes mellitus and peripheral neuropathy of the upper extremities with carpal tunnel syndrome. The issues of entitlement to a higher evaluation for diabetic nephropathy and a TDIU were remanded. The Veteran appealed the Board's denial of higher evaluations for peripheral neuropathy of the upper extremities with carpal tunnel syndrome to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Memorandum Decision, the Court remanded the issues, in addition to the question of entitlement to an extraschedular rating, for further development and readjudication consistent with its decision. The Board also notes that the previously remanded issues, entitlement to a higher evaluation for diabetic nephropathy and a TDIU, have been returned to the Board for appellate consideration. While these issues were in remand status, various actions by the Agency of Original Jurisdiction (AOJ) awarded service connection or higher ratings for already service-connected disabilities. As a result, the Veteran's combined evaluation for compensation is 100 percent, effective November 10, 2015. As the award of a 100 percent schedular evaluation renders the claim of entitlement to a TDIU moot, the Board has characterized the issue of entitlement to a TDIU for the period prior to November 10, 2015 and need not consider the subsequent period as it pertains to this claim. The issues of entitlement to higher evaluations for peripheral neuropathy of the upper extremities with carpal tunnel syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. For the period prior to September 10, 2014, diabetic nephropathy was manifested by renal dysfunction with hypertension at least 10 percent disabling; there was no evidence of edema, definite decrease in kidney function, or hypertension at least 40 percent disabling. 2. For the period from September 10, 2014 to November 9, 2015, diabetic nephropathy was manifested by renal dysfunction with constant albuminuria with some edema; there was no evidence of persistent edema and albuminuria with base urea nitrogen 40 to 80mg%. 3. For the period from November 10, 2015, diabetic nephropathy is manifested by renal dysfunction with persistent edema and albuminuria, and generalized poor health. 4. For the period prior to November 10, 2015, the Veteran's service-connected disabilities, as a whole, rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to September 10, 2014, the criteria for an evaluation in excess of 30 percent for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7541 (2017). 2. For the period from September 10, 2014 to November 9, 2015, the criteria for a 60 percent evaluation, but no higher, for diabetic nephropathy have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7541 (2017). 3. For the period from November 10, 2015, the criteria for an evaluation in excess of 80 percent for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7541 (2017). 4. For the period prior to November 10, 2015, the criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran was notified of the evidence necessary to support his claims in correspondence dated in November 2007 and August 2008. This correspondence notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, service and VA treatment records have been associated with the electronic claims file. Relevant VA examinations have been conducted, and clarification sought. The Board finds that when viewed in conjunction with the other medical evidence of record, there is adequate information to fairly address the severity of the Veteran's diabetic nephropathy. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate his claims. The Board is also unaware of any such outstanding evidence or information. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Evaluation of Diabetic Nephropathy As noted above, the Veteran's diabetic nephropathy is evaluated as 30 percent disabling prior to November 10, 2015, and as 80 percent disabling from that date. Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has already been established and an increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. The rating schedule provides descriptions of various levels of disability in each of these symptom areas. If the diagnostic code refers to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. 38 C.F.R. § 4.115(a). 38 C.F.R. § 4.115(b) , Diagnostic Code 7541, pertaining to renal involvement in diabetes mellitus, sickle cell anemia, systemic lupus erythematosus, vasculitis, or other systemic disease processes, provides that the disability is rated as renal dysfunction. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN [blood urea nitrogen] more than 80mg% [milligrams per 100 milliliters]; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. Renal dysfunction characterized 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 a limitation of exertion warrants an 80 percent rating. Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101 warrants a 60 percent rating. Renal dysfunction where albumin is 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 warrants a 30 percent rating. Having carefully reviewed the record, the Board has determined that for the period prior to September 10, 2014, an evaluation in excess of 30 percent is not warranted for diabetic nephropathy. In this regard, neither the outpatient treatment records nor VA examination reports in July 2007, November 2008, October 2009, or January 2010 reflect findings that support a higher evaluation. As discussed by a VA clinician in November 2016, the earliest clinical indication of edema together with microalbuminuria was on VA examination in 2014. He noted that there was no clinical evidence of edema together with microalbuminuria on examination in 2007 or 2010. This clinician also stated that none of the VA examination reports reflected decrease in kidney function, hypertension with diastolic pressure predominantly 120 or more, laboratory findings reflecting BUN or creatinine supportive of a higher evaluation, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Rather, for this period, the evidence demonstrates that there was no edema, and only trace protein in the urine on laboratory testing in May 2006. However, the records show hypertension which warranted a 10 percent evaluation; thus, for the period prior to September 10, 2014, the current 30 percent evaluation is appropriate. For the period from September 10, 2014 to November 9, 2015, the Board has determined that a 60 percent evaluation is for application. In this regard, examination on that date noted edema in combination with the previously noted albuminuria. As discussed by the VA clinician in 2016, this is the first evidence documenting edema. The Board's review of the clinical records confirms this. The outpatient records as well as VA examination reports indicate that there was no peripheral edema prior to September 10, 2014. The Board additionally notes that for this period, the criteria for an evaluation higher than 60 percent are not met. The evidence pertaining to this period fails to demonstrate renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion. Notably, while the evidence reflects persistent edema and albuminuria, BUN has never been measured as 40 percent or more. Rather, BUN was measured, at its highest, at 22 in April 2007, and has otherwise ranged from 19.4 in November 2006 to 22 in April 2007. Moreover, as discussed by the VA clinician in 2016, he found no evidence in the record of renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion. Thus, the Board concludes that, for this period, a 60 percent evaluation is appropriate for diabetic nephropathy, based on findings of constant albuminuria with some edema. Finally, for the period from November 10, 2015, the Board concludes that an evaluation in excess of 80 percent is not for application. The current 80 percent evaluation contemplates renal dysfunction characterized by persistent edema and albuminuria with BUN (blood urea nitrogen) 40 to 80mg% (milligrams per 100 milliliters), creatinine 4 to 8mg%, or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion. In the December 2015 rating decision that assigned the 80 percent evaluation from November 10, 2015, the AOJ noted that this evaluation was assigned based on persistent albuminuria and persistent edema, in addition to "Other Fact BUN, Creatinine, Upper limit of creatinine testing protocol". While this does not afford the Board a great deal of insight into the bases for the assignment of this higher evaluation, the Board notes that there is no evidence of 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. Thus, it cannot be accurately stated that the criteria for the maximum 100 percent evaluation are met. The Board notes that the Veteran is competent to report that his disability is worse; however, the more probative evidence consists of that prepared by neutral skilled medical professionals based on trained observation and examination, and such evidence demonstrates that the currently assigned evaluations for diabetic nephropathy are appropriate. As such, the appeal is denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). In this case, for the period from March 14, 2007, the Veteran's service-connected disabilities consisted of diabetes mellitus, evaluated as 20 percent disabling; diabetic nephrology, evaluated as 30 percent disabling; peripheral neuropathy of the right upper extremity with carpal tunnel syndrome, evaluated as 30 percent disabling; and peripheral neuropathy of the left upper extremity, evaluated as 20 percent disabling. His combined evaluation for compensation was 70 percent, and as the diabetic nephropathy and upper extremity peripheral neuropathy stem from the same etiology (diabetes mellitus), the Veteran met the criteria for a TDIU under § 4.16(a) as of that date. Having carefully reviewed the record, the Board concludes that for the period prior to September 17, 2012, TDIU is warranted. In reaching this conclusion, the Board acknowledges that VA clinicians have provided opinions with respect to the impact of the Veteran's service-connected disabilities on employment. However, none have offered an in depth discussion of the effect of the disabilities for which the Veteran received VA disability, to include his educational and vocational history. On the other hand, the Veteran's attorney has submitted a comprehensive and detailed report from a vocational disability expert and counselor. This report carefully details the Veteran's vocational and educational background, and addresses the opinions provided by VA clinicians. The counselor noted that the Veteran last worked in 2006, and held a position as a maintenance worker from 1998 to 2006, where he performed heavy labor. She acknowledged that the Veteran left that job due to a nonservice-connected condition, but indicated that regardless of the nonservice-connected disability, the Veteran would not have been able to maintain that work any longer due to numbness, swelling, pain, and decreased strength in his upper extremities. She noted that his work requirements would have exacerbated his symptoms and made it impossible to perform competitively without experiencing interruptions due to service-connected symptoms. While she acknowledged that VA providers had stated that the Veteran was able to perform jobs requiring light t semi sedentary duty that did not require standing or walking for prolonged periods or lifting and carrying less than 20 pounds, she pointed out that the Veteran was unable to sustain the frequent handling, reaching, and fingering required in sedentary skilled work, and concluded that the Veteran did not possess any transferrable skills to sedentary skilled work. She further noted that the VA clinician who provided opinions in 2016 did not consider the combined effect of the Veteran's service-connected disabilities on his ability to secure and follow substantially gainful work, or his social and industrial background. In weighing the lay and medical evidence of record, the Board finds that the preponderance of the evidence supports a finding that, prior to November 10, 2015, the Veteran was rendered unable to obtain and maintain a substantially gainful occupation as the result of his service-connected disabilities, when considered as a whole. As such, TDIU is warranted for the period prior to November 10, 2015. ORDER For the period prior to September 10, 2014, an evaluation in excess of 30 percent for diabetic nephropathy is denied. For the period from September 10, 2014 to November 9, 2015, an evaluation of 60 percent for diabetic nephropathy is granted, subject to the controlling regulations applicable to the payment of monetary benefits. For the period from November 10, 2015, an evaluation in excess of 80 percent for diabetic nephropathy is denied. For the period prior to November 10, 2015, a TDIU is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND The Veteran is in receipt of service connection for peripheral neuropathy of the bilateral upper extremities with carpal tunnel syndrome, evaluated pursuant to paralysis of the median nerve. In the May 2017 Memorandum Decision, the Court pointed out the Veteran's argument with respect to his upper extremity peripheral neuropathy that he had significant involvement of multiple muscles of both upper extremities and numerous symptoms that would indicate that rating the disability by radicular group might be more appropriate. The Court also acknowledged evidence showing symptoms referable to the right ulnar nerve as well as the median nerve, and that the Veteran had suggested that a separate rating for paralysis of the ulnar nerve might be appropriate. The Court indicated that it was necessary that the Board consider the possibility that the Veteran was entitled to an increase or separate rating on a schedular basis for his right upper extremity neuropathy. Given the foregoing, the Board has determined that an examination is necessary to assess the scope of the Veteran's upper extremity peripheral neuropathy, to include inquiry as to whether there is involvement of the ulnar nerve or whether there is involvement of multiple muscles of the upper radicular groups. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity and manifestations of his service-connected diabetic neuropathy of the upper extremities. The claims file must be reviewed by the examiner in conjunction with the examination and such review should be noted in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following examination of the Veteran and review of the record, the examiner should describe the manifestations of the Veteran's diabetic neuropathy. The examiner should specify whether diabetic neuropathy is productive of incomplete paralysis of either ulnar nerve. If so, the examiner should describe the severity of such. The examiner should also indicate whether diabetic neuropathy is productive of incomplete paralysis of any radicular group, or of the radial nerve. If so, the examiner should describe the severity of such. The examiner must explain the rationale for any opinion expressed. 2. Thereafter, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand; if not, the AOJ should implement corrective procedures. 3. Then, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs