Citation Nr: 21000759 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-18 483 DATE: January 6, 2021 ORDER An increased rating higher than 10 percent from March 18, 2013 and continuing thereafter for hypertension is denied. An increased 30 percent rating from March 18, 2013 and continuing thereafter for diabetic nephropathy is granted. FINDINGS OF FACT 1. For the entirety of the rating period on appeal, the Veteran’s blood pressure was at worst, 180 systolic/84 diastolic. 2. With resolution of the doubt in his favor, the severity of the Veteran’s diabetic nephropathy manifested as recurrent albumin with hypertension rated at least 10 percent disabling from March 18, 2013 and continuing thereafter. CONCLUSIONS OF LAW 1. The criteria to establish an increased rating higher than 10 percent for the entirety of the rating period on appeal for hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code (DC) 7101 (2019). 2. The criteria to establish an increased 30 percent rating from March 18, 2013 and continuing thereafter for diabetic nephropathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.115a, b, DC 7541 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1969 to March 1973, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Louisville, Kentucky Regional Office (RO). In December 2019, the Board remanded the appeals to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) and special monthly compensation (SMC) on account of loss of use of a creative organ from February 20, 2013 and continuing thereafter. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2019). Hypertension Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101 (2019). A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Id. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. Id. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. Id. The Veteran is rated noncompensable from March 11, 2008 to March 17, 2013 and 10 percent disabling from March 18, 2013 and continuing thereafter under DC 7101. The appellate period is from March 18, 2013. An August 2013 VA treatment record reflects the Veteran’s blood pressure reading at 155 systolic/81 diastolic. VA treatment records dated early and late September 2013 reflect blood pressure readings, measured systolic/diastolic, at 132/69 and 129/74, respectively. A January 2014 VA treatment record reflects a blood pressure reading at 140 systolic/73 diastolic. A February 2014 VA treatment record reflects a blood pressure reading at 140 systolic/70 diastolic. A March 2014 VA treatment record reflects a blood pressure reading at 128 systolic/64 diastolic. VA treatment records dated early to late June 2018 reflect blood pressure readings at 147/75, 118/64, 147/69, 136/61, 147/73 and 126/67. A July 2018 VA treatment record reflects blood pressure readings at 133/74, 135/76, 126/62 and 145/68. An August 2018 VA treatment record reflects a blood pressure reading of 132/66. A September 2018 VA treatment record reflects blood pressure readings of 139/71 and 151/70. An October 2018 VA treatment record reflects a blood pressure reading at 136/84. A November 2018 VA treatment record reflects a blood pressure reading at 104/62. VA treatment records dated April 2019, May 2019 and June 2019 reflect blood pressure readings of 142/64, 103/63 and 144/62, respectively. VA treatment records dated early to late September 2019 reflect blood pressure readings of 134/69, 138/66, 137/64, 135/64, 145/65, 147/69, 130/73, 140/69, 145/75, 147/59, 144/62, 134/67, 150/62, 137/59, 142/60, 138/61, 121/69, 157/66, 132/66, 142/66, 154/74, 121/63 and 144/76. VA treatment records dated early to late October 2019 reflect blood pressure readings of 135/65, 142/61, 136/62, 143/59, 120/61, 154/69, 133/62, 134/62, 135/58 and 137/55. VA treatment records dated early to late November 2019 reflect blood pressure readings of 154/60, 133/60, 134/62, 133/61, 146/62, 127/57, 172/60, 116/61, 154/58, 141/62, 145/67, 180/80 and 161/71. A January 2020 VA treatment record reflects blood pressure readings of 141/72, 126/71 and 155/77. In the January 2020 VA examination, the Veteran’s blood pressure readings were 140/80, 142/80 and 142/82. The examiner indicated that the Veteran’s treatment plan included taking continuous medication and that the Veteran did not have a history of diastolic blood pressure elevation of predominantly 100 or more. A March 2020 VA treatment record reflects blood pressure readings of 132/64 and 148/69. A preponderance of the evidence is against a finding of an increased rating higher than 10 percent for the entirety of the rating period on appeal for the Veteran’s hypertension. During the entirety of the rating period on appeal, the Veteran’s blood pressure was at worst, 180 systolic/84 diastolic. Therefore, an increased rating is not warranted and the claim is denied. Diabetic nephropathy Under DC 7541, renal involvement in diabetes mellitus, sickle cell anemia, systemic lupus erythematosus, vasculitis, or other systemic disease processes must be rated as renal dysfunction. 38 C.F.R. § 4.115b, DC 7541 (2019). Under DC 7541, a noncompensable rating is warranted for a renal dysfunction resulting in albumin and casts with history of acute nephritis; or, hypertension noncompensable under DC 7101. 38 C.F.R. § 4.115a, DC 7541 (2019). A 30 percent rating is warranted for a renal dysfunction resulting in 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 DC 7101. Id. A 60 percent rating is warranted for a renal dysfunction resulting in constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. Id. An 80 percent rating is warranted for a renal dysfunction resulting in persistent edema and albuminuria with blood urea nitrogen (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 rating is warranted for renal dysfunction that 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, creatinine more than 8% mg; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Id. The Veteran is rated noncompensable from February 20, 2013 and continuing thereafter for diabetic nephropathy under DC 7541. The appellate period is from February 20, 2013. In the August 2013 VA examination, the examiner indicated that the Veteran’s treatment plan for his diabetic kidney disease included taking continuous medication. The examiner noted that the Veteran’s renal dysfunction did not require regular dialysis and that it was asymptomatic. The examiner noted no urolithiasis, no history of recurrent symptomatic urinary tract or kidney infections, no kidney transplant or removal, no tumors or neoplasms and no other pertinent physical findings. BUN and creatinine testing revealed 30 percent mg and 1.3 percent mg, respectively. Proteinuria testing revealed 8.645 percent mg of albumin. In a March 2014 VA treatment record, BUN and creatinine testing revealed 25 percent mg and 1.21 percent mg, respectively. A December 2017 VA treatment record reflects BUN at 21 percent mg and creatinine at 1.4 percent mg. In a March 2018 VA treatment record, BUN and creatinine testing revealed 23 percent mg and 1.1 percent mg, respectively. In a May 2018 VA treatment record, BUN and creatinine testing revealed 26 percent mg and 1.5 percent mg, respectively. A January 2019 VA treatment record reflects BUN at 18 percent mg and creatinine at 1.2 percent mg. A February 2019 VA treatment record reflects BUN at 20 percent mg and creatinine at 1.4 percent mg. A January 2020 VA treatment record reflects creatinine at 1.4 percent mg. In the January 2020 VA examination, the examiner indicated that the Veteran’s treatment plan did not include taking continuous medication and that the Veteran’s renal dysfunction did not require regular dialysis. The Veteran’s renal tubular disorder was asymptomatic. The examiner noted no urolithiasis, no history of recurrent symptomatic urinary tract or kidney infections, no kidney transplant or removal, no benign or malignant neoplasms or metastases and no other pertinent physical findings. The examiner noted no edema in the Veteran’s bilateral lower extremities and described the Veteran’s diabetic nephropathy as mild. Laboratory testing revealed BUN at 23 percent mg, creatinine at 1.22 percent mg and albumin at 4.9 percent mg. The Board will grant a 30 percent rating from March 18, 2013 and continuing thereafter for the Veteran’s diabetic nephropathy based on the benefit-of-the-doubt doctrine. From February 20, 2013 to March 17, 2013, there is no competent evidence that the Veteran’s renal dysfunction resulted in albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema. However, the August 2013 VA examination revealed 8.645 percent mg of albumin and the January 2020 VA examination revealed 4.9 percent mg of albumin. As noted above, the Veteran’s hypertension is rated 10 percent disabling from March 18, 2013 and continuing thereafter under DC 7101. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased rating is warranted and the claim is granted. A preponderance of the evidence is against a finding of an increased rating higher than 30 percent from March 18, 2013 and continuing thereafter for the Veteran’s diabetic nephropathy. Two VA examiners have indicated that the Veteran’s diabetic nephropathy was asymptomatic and no edema was noted. Laboratory findings revealed, at worst, BUN at 30 percent mg and creatinine at 1.5 percent mg. In addition, the Veteran’s hypertension is not rated at least 40 percent disabling. Therefore, an increased rating higher than 30 percent is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.