Citation Nr: 20054855 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 16-11 881 DATE: August 19, 2020 ORDER Entitlement to an initial 100 percent disability rating for the service-connected nephropathy is granted from February 7, 2017, subject to the regulations governing the payment of monetary awards, but an initial disability rating in excess of 80 percent for this disability prior to February 7, 2017, is denied. FINDING OF FACT From February 7, 2017, the Veteran’s diabetic nephropathy was manifested by a BUN of more than 80 mg and later regular dialysis; prior to that date, the Veteran’s diabetic nephropathy was manifested by laboratory results indicating less severe renal dysfunction and generalized poor health characterized by limitation of exertion. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 100 percent for the service-connected nephropathy from February 7, 2017 have been met, but the criteria in excess of 80 percent prior to this date for this disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.115, Diagnostic Code 7541. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1968 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision in November 2015. During this appeal, the Veteran and his spouse testified via live video conference at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2019. In October 2019, the Board remanded this appeal to request the Veteran to provide or authorize VA to obtain non-VA treatment records related to his diabetic nephropathy. The Veteran did not provide the requested records or authorize VA to obtain them. Therefore, any evidence those records may have contained are not before the Board, and the case has been returned to the Board for a final adjudication. Entitlement to an initial disability rating in excess of 80 percent prior to July 15, 2019, for diabetic nephropathy The Veteran’s diabetic nephropathy has been assigned an initial rating of 80 percent prior to July 15, 2019, and, from July 15, 2019, this disability has been granted a 100 percent disability rating, which constitutes the highest available schedular rating. Thus, only the period prior to July 15, 2019, remains on appeal. The Veteran contends that his diabetic nephropathy should be entitled to a higher disability rating prior to July 15, 2019, because he was advised that he was on the verge of needing dialysis or a kidney transplant prior to that time. The Veteran’s diabetic nephropathy is rated under 38 U.S.C. § 1155; 38 C.F.R. § 4.115(b), Diagnostic Code 7541. Under this diagnostic code, this disease is to be rated as renal dysfunction. Renal dysfunction is rated under the table of Ratings of the Genitourinary System – Dysfunctions. 38 U.S.C. § 1155; 38 C.F.R. § 4.115(a). In pertinent part, this regulation provides an 80 percent disability rating for persistent edema and albuminuria with BUN 40 to 80 mg; or, creatinine 4 to 8 mg; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Id. A 100 percent disability rating is provided where this condition requires regular dialysis, or precludes more than sedentary activity from either persistent edema or albuminuria; or, BUN more than 80 mg; or, creatinine more than 8 mg; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. The question in this appeal is whether the Veteran’s diabetic nephropathy meets the criteria for a 100 percent disability rating prior to July 15, 2019. In this regard, the Board finds that the earliest that Veteran’s diabetic nephropathy meets the criteria for a 100 percent disability rating is February 7, 2017. On that date, VA treatment records demonstrate that his BUN registered 83 mg, meeting the laboratory criteria for a 100 percent disability rating. Prior to that date, the Veteran’s treatment records do not show that he met either the laboratory or clinical criteria for a 100 percent disability rating. While the records disclose that the Veteran had chronic kidney disease in advanced stages, including persistent edema which limited his activities, they were not so limited that he was required to remain sedentary. The Veteran was able to participate in physical therapy, and he appears to have delayed the creation of a fistula to facilitate dialysis because he wished to continue swimming. His doctors agreed to this, indicating that the Veteran’s kidney remained functional enough, based on laboratory findings, that the creation of a fistula to begin dialysis was not yet necessary for most of the appeal period. The November 2015 VA examination of the Veteran’s kidney condition had resulted in persistent proteinuria, transient edema, weakness, and limitation of exertion, but his other organ systems were not severely impacted, and his laboratory results were below the thresholds given in the 100 percent criteria. Although a fistula was apparently discussed with the Veteran prior to this examination, follow up VA treatment records even as recently as January 2017 indicate that monitoring of his condition in 2016 had caused them to determine it was not necessary at that time. The Veteran argues in his December 2015 notice of disagreement that, because he was advised on the imminent need for dialysis or transplant, apparently prior to the VA examination the previous month, VA should consider his kidney function to be similar enough to kidney function needing dialysis that he should be rated equivalently. The Board has considered this argument, but the medical evidence indicates that, while dialysis and transplant options were considered in 2015 and 2016, those methods of treatment were either not available (transplant) or deemed not yet appropriate for the level of kidney function (dialysis) until March 2017, at the earliest, which is much more convincing. Thus, despite the Veteran’s assertion that he had kidney dysfunction that was the equivalent of necessitating regular dialysis, the medical evidence indicates that the Veteran did not meet the criteria until the February 2017 laboratory findings already discussed. Accordingly, the Board finds that, prior to February 7, 2017, the evidence of record does not meet the criteria for a 100 percent disability rating, and no increase is warranted for his diabetic nephropathy prior to that date. In reaching this decision, and as previously discussed herein, the Veteran’s condition was reexamined in early 2017, when his laboratory results revealed that he had a BUN above 80 mg, which meet the laboratory criteria for a 100 percent disability rating. One month later, a fistula was created to facilitate dialysis. Although the medical records do not indicate when the Veteran’s regular dialysis began, because those records exist outside the VA system and the Veteran has not authorized VA to obtain them, the Veteran had certainly begun regular dialysis by July 15, 2019. Also, he testified that his dialysis was started on May 28, 2018. In either case, the evidence presented for the period from February 7, 2017, is sufficient to establish that the Veteran met the criteria for a 100 percent disability rating for diabetic nephropathy from that date only. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.