Citation Nr: 21000268 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-00 500 DATE: January 5, 2021 ORDER Entitlement to a 60 percent rating, but not higher, for diabetic nephropathy with hypertension, as of April 13, 2012, but not earlier, is granted. Entitlement to an effective date earlier than April 13, 2012, for service connection for diabetic nephropathy with hypertension is denied. Entitlement to an effective date of April 13, 2012, but not earlier, for the assignment of a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. As of April 13, 2012, the Veteran’s diabetic nephrology with hypertension has not been productive of 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. 2. The record indicates that entitlement for a separate rating for diabetic nephropathy arose when a diagnosis was attributed to service-connected diabetes mellitus at a VA examination on April 13, 2012. 3. As of April 13, 2012, but not earlier, the service-connected disabilities were of such severity as to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 60 percent for diabetic nephropathy with hypertension were met as of April 13, 2012. 38 U.S.C. § 1155; 38 C.F.R. § 4.115, 4.115; Diagnostic Code 7701-7541. 2. The criteria for an effective date prior to April 13, 2012, for service connection for diabetic nephropathy with hypertension are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for TDIU were met as of April 13, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. Pursuant to the November 2018 Board remand, the Agency of Original Jurisdiction issued a November 2019 statement of the case. The Veteran submitted a timely substantive appeal in December 2019. The Board notes that additional VA medical records were added to the file after the case was transferred to the Board. A review of these records shows that relevant medical evidence was not part of these additional medical records. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a 60 percent rating for diabetic nephropathy with hypertension The Veteran was assigned a 0 percent rating prior to September 3, 2016, and a 60 percent rating as of September 3, 2016, for diabetic nephrology with hypertension under Diagnostic Codes 7101-7541. The Veteran contends higher ratings are warranted for the appeal period. Diagnostic Code 7541 indicates that renal involvement in diabetes should be rated as renal dysfunction under 38 C.F.R. § 4.115a. 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 is warranted where there is 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. A 100 percent rating is warranted where the condition requires regular dialysis, or if it precludes more than sedentary activity from one of the following: persistent edema and albuminuria, or BUN more than 80 mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Under Diagnostic Code 7101, a 10 percent rating is assigned for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or is the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is assigned for diastolic readings of predominantly 110 or more or systolic readings of 200 or more. A 40 percent disability rating is assigned for diastolic readings of predominantly 120 or more. A 60 percent disability rating is assigned for diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. VA and private medical records show chronic kidney disease, stage 3, throughout the appeal period. The evidence has not shown the Veteran’s kidney disability manifested with greater severity than demonstrated on examination. In an April 2012 VA examination, the Veteran reported that his primary care physician informed him that he had proteinuria two years earlier. He did not attribute any symptoms to chronic kidney disease. The Veteran did not require regular dialysis. The examiner noted persistent proteinuria due to renal dysfunction. Diagnostic testing showed BUN was 29, creatinine was 122, and EGFR was 63. There was no functional impact due to the kidney disability. In a February 2018 VA examination, the Veteran’s treatment plan did not require continuous medication. Although the Veteran had renal dysfunction, he did not have any signs or symptoms of renal dysfunction. He did not require regular dialysis. Recent diagnostic testing showed BUN was 32, creatinine was 1.75, and eGFR was 63. The Veteran’s hypertension required continuous medication. Blood pressure readings were 140/90, 130/90, and 140/90. The examiner noted that the Veteran was well developed and well nourished. There was no edema in the lower extremities. There were no signs of malaise. In reviewing the record, the Board finds that a 60 percent rating, but not higher, was warranted as of April 13, 2012, but not earlier. The Board acknowledges that the severity of the Veteran’s kidney symptoms appeared to have somewhat fluctuated throughout the appeal period. However, he experienced chronic kidney disease, stage 3, which indicates definite decrease in kidney function throughout the appeal period. At the April 2012 VA examination, the examiner noted persistent proteinuria, but the evidence did not show albuminuria. Evidence after the April 2012 examination also did not indicate persistent edema or albuminuria. Rather, the evidence indicated decreased kidney function with BUN below 40 mg% and creatinine below 4 mg%. In addition, VA treatment records do not support diastolic pressure predominately at 120. The Veteran does not meet the criteria for an 80 percent rating as the evidence does not show 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. Therefore, a rating higher than 60 percent is not warranted. Accordingly, the Board finds that the Veteran’s renal dysfunction with hypertension has warranted a 60 percent rating, but not higher, as of April 13, 2012, but not earlier. A rating higher than 60 percent is not warranted during the appeal period. The Board finds that the preponderance of the evidence is against the assignment of any higher rating. Earlier Effective Date In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by VA must be filed. 38 C.F.R. § 3.151(a). A claim or application is defined by VA regulation as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action, indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies if an application for benefits is received within one year from the date of a Veteran’s separation from active service, and an award is made on the basis of that application. In that limited situation, the effective date of the award is made retroactive to the day following the date of separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). VA has a duty to maximize a claimant’s benefits. Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, a case encompasses all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 2. Entitlement to an effective date earlier than April 13, 2012, for service connection for diabetic nephropathy with hypertension The Veteran contends that an earlier effective date for the separate rating for diabetic nephropathy with hypertension is warranted. On a claim date-stamped as received by VA on September 23, 2010, the Veteran requested to reopen claims secondary to service-connected diabetes mellitus. The Veteran did not identify diabetic nephropathy in the statement. At the April 2012 VA examination, the Veteran reported that his primary care physician informed him that he developed proteinuria, an early sign of diabetic nephropathy two years earlier. The examiner diagnosed diabetic nephropathy and attributed the disease to the service-connected diabetes In a September 2018 rating decision, service connection for diabetic nephropathy was established and a 0 percent rating was assigned as of April 13, 2012, and a 60 percent rating as of September 22, 2016. A November 2019 rating decision assigned a 60 percent rating as of September 3, 2016. In reviewing evidence, the Board finds that an effective date earlier than April 13, 2012, is not warranted for a separate rating for diabetic nephropathy. The Veteran filed a claim on September 23, 2010, that specified a bilateral eye disability and erectile dysfunction as secondary to the service-connected diabetes. During the course of the appeal, the Veteran’s diabetes was examined and a diagnosis of diabetic nephropathy was attributed to service-connected diabetes. Prior to the April 2012 VA examination, VA and private medical records show decreased kidney function and chronic kidney disease. However, the Veteran reported at the April 2012 VA examination that he was aware of the diabetic nephropathy for two years, but did not file a claim or indicate any informal intention to file a claim for this disability. The April 2012 VA examination attributed the diabetic nephropathy to the service-connected diabetes. Therefore, the Board finds an effective date of April 13, 2012, is appropriate as the rating of diabetes include consideration of other disabilities related to diabetes, such as nephropathy. As a claim for service connection for diabetic nephropathy was not received by VA within one year of separation from service, the date for the assignment of the separate rating for diabetic nephropathy will be the date of receipt of the claim for a higher rating diabetes or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the effective date of September 3, 2016, was assigned, which was the date of receipt of private treatment records that noted decreased kidney function. However, the April 2012 VA examination showed a diagnosis for diabetic nephropathy and attributed the diagnosis to the service-connected diabetes. An effective date earlier than April 13, 2012, is not warranted. The governing legal authority is clear and specific, and VA is bound by it. Therefore, the finds that the preponderance of the evidence is against the claim for an earlier effective date for service connection for diabetic nephropathy, and the claim is denied. 3. Entitlement to an effective date earlier than September 3, 2016, for TDIU The Veteran asserts that the service-connected disabilities made him unable to secure and follow any form of substantially gainful employment consistent with his education and work experience prior to September 3, 2016. In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400 (o); Harper v. Brown, 10 Vet. App. 125 (1997). Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased rating is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Total disability ratings are authorized for any service-connected disability or combination of service-connected disabilities, provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of the service-connected disabilities. If there is only one service-connected disability, it must be rated at least 60 percent. If there are two or more disabilities, at least one must be rated at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether the threshold minimum rating requirements are met. A November 2019 rating decision established TDIU. An effective date of September 3, 2016, was assigned, the date that the Veteran first met the schedular criteria. Prior to September 3, 2016, service connection was established for diabetic nephropathy, rated 60 percent; squamous cell carcinoma residuals, rated 30 percent; post-radiation dermatitis associated with squamous cell carcinoma residuals, rated 30 percent; and diabetes mellitus, rated 20 percent; tinnitus, rated 10 percent; hearing loss, rated 0 percent. The combined service-connected disability rating was increased to 80 percent as of April 13, 2012. A review of the record shows that the Veteran was forced into early retirement as a Superintendent for the Department of Transportation on August 31, 2008. The Veteran reported that his doctor told him not to work after a second larynx surgery in 2005. He missed a significant time from work between 2005 and 2008. In a January 2016 private evaluation, the examiner opined that the Veteran was unable to secure or maintain substantially gainful employment since 2008, when the Veteran resigned. Due to the service-connected larynx related disabilities, the Veteran would lose his ability to speak for days at a time and require days of voice rest. Prior to resigning, the Veteran would miss two to three days of work a week. The Veteran’s larynx disabilities precluded other work due to constant absenteeism. The Board finds that prior to September 3, 2016, the service connected disabilities met the schedular criteria under 38 C.F.R. § 4.16(a). VA and private examiners stated that the Veteran was unable to keep working due to service-connected disabilities. He has not been employed on a full-time basis since August 31, 2008. As of January 1, 2013, he began to work less than full time and exhaust his leave, resulting in a suspension at work also. The Board finds that the evidence supports a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities as of April 13, 2012. However, the Board finds that the preponderance of the evidence is against a finding that TDIU was warranted prior to April 13, 2012. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the service connected disabilities made the Veteran unable to secure or follow a substantially gainful occupation as of April 13, 2012, but not earlier. Therefore, the claim for TDIU as of April 13, 2012, but not earlier, is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.