Citation Nr: 21062901 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-37 720 DATE: October 12, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent prior to January 30, 2015 for diabetic nephropathy is denied. Entitlement to a compensable disability rating from January 30, 2015 to June 20, 2019 for diabetic nephropathy is denied. Entitlement to a disability rating in excess of 60 percent from June 21, 2019 forward for diabetic nephropathy is denied. FINDINGS OF FACT 1. Prior to January 30, 2015, the Veteran's diabetic nephropathy was manifest by no more than a BUN level of 1.4, which is evidence of constant albuminuria. 2. From January 30, 2015 to June 20, 2019, there is no evidence of decreased kidney function due to the Veteran's diabetic nephropathy. 3. From June 21, 2019 forward, the Veteran's diabetic nephropathy was manifest by no more than a BUN level of 1.4, which is evidence of constant albuminuria. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 60 percent prior to January 30, 2015 for diabetic nephropathy have not been met. 38U.S.C. §§1155, 5107;38C.F.R. §§3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7541. 2. The criteria for entitlement to a compensable disability rating from January 30, 2015 to June 20, 2019 for diabetic nephropathy have not been met. 38U.S.C. §§1155, 5107;38C.F.R. §§3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7541. 3. The criteria for entitlement to a disability rating in excess of 60 percent from June 21, 2019 forward for diabetic nephropathy have not been met. 38U.S.C. §§1155, 5107;38C.F.R. §§3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7541. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1965 to September 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a Board hearing in his August 2016 Form 9. Subsequently, the Veteran did not appear at the scheduled March 2019 Board hearing, has not provided good cause for not appearing, and has not requested another hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704 (d). The Board remanded this matter in December 2019 for additional development. 1. Entitlement to an initial disability rating in excess of 60 percent prior to January 30, 2015 for diabetic nephropathy. 2. Entitlement to a compensable disability rating prior to June 21, 2019 for diabetic nephropathy. 3. Entitlement to a disability rating in excess of 60 percent from June 21, 2019 forward for diabetic nephropathy. The Veteran contends that he is entitled to a higher disability rating for his diabetic nephropathy. By way of procedural history, service connection for diabetic nephropathy was granted in an October 2015 rating decision. An initial disability rating of 60 percent was assigned effective October 21, 2014, followed by a noncompensable rating from January 30, 2015. In an August 2020 rating decision, an increased disability rating of 60 percent was assigned from June 21, 2019 forward. The Board notes that the assignment of a staged rating which includes a higher evaluation followed by a lower evaluation does not require application of the reduction notice rule. The procedural protections regarding reduction of stabilized ratings under 38 C.F.R. § 3.344 only apply to prospective rating reductions and are inapplicable to retroactively assigned staged ratings that are assigned as part of an initial or increased rating. The Veteran's diabetic nephropathy is rated under Diagnostic Code7541, Ratings of the genitourinary system, Renal involvement in diabetes mellitus. 38 C.F.R. § 4.115b. Diagnostic Code7541 instructs to rate diabetic nephropathy under the rating criteria for renal dysfunction. Under the criteria for renal dysfunction, a 30 percent disability rating is assigned for evidence of 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 Diagnostic Code 7101. 38C.F.R. §4.119a. A 60 percent disability rating is assigned for evidence of constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. Id. An 80 percent disability rating is assigned for evidence of 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 limitation of exertion. Id. A 100 percent disability rating is assigned for evidence of a requirement for 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. Id. October 2014 VA lab work results showed a creatinine level of 1.4 and a BUN level of 21. January 2015 VA lab work results show a creatinine level of 1.1 and a BUN level of 17. A March 2015 VA treatment record notes that January 2015 VA lab work results showed a creatinine level of 1.1 and a BUN level of 17. August 2015 VA lab work results show a creatinine level of 1.2. The Veteran was afforded a VA kidney conditions examination in October 2015. A diagnosis of diabetic nephropathy was noted. The Veteran reported that in the prior year he was found to have elevated renal function that was ongoing due to diabetes. It was noted that the Veteran has renal dysfunction but does not require dialysis and had no signs or symptoms due to renal dysfunction. Neither hypertension due to renal dysfunction nor frequent attacks of pyonephrosis were noted. Abnormal BUN was noted. No functional impact due to his kidney condition was noted. A February 2016 VA treatment record notes the Veteran has no edema. Diabetes type II with renal manifestations was noted. October 2017 VA lab work results showed the Veteran had a creatinine level of 1.3 and a BUN level of 27. April 2019 VA lab work results showed a creatinine level of 1.3 and a BUN level of 23. June 21, 2019 VA lab work results show a creatinine level of 1.4 and an EGFR of 50. The Veteran was afforded a VA kidney conditions examination in December 2019. A diagnosis of diabetic nephropathy was noted. It was noted that the condition was stable with no current symptoms. Abnormal BUN and abnormal EGFR were noted. Based on the above evidence, prior to January 30, 2015, and from June 21, 2019 forward, the evidence shows the Veteran had a BUN level of 1.4, which is evidence of constant albuminuria. However, from January 30, 2015 to June 20, 2019, there is no evidence of decreased kidney function. Further, the Board notes that throughout the entire period on appeal, the evidence does not reflect edema, hypertension at least 10 percent disabling under Diagnostic Code 7101, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, evidence of a requirement for regular dialysis, persistent edema and albuminuria, BUN more than 80mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. Based on the above, the Board finds that the preponderance of the evidence is against a disability rating in excess of 60 percent prior to October 21, 2014 and from June 21, 2019 forward, or for a compensable rating from January 30, 2015 to June 20, 2019. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38U.S.C. §5107; 38C.F.R. §§4.3, 4.7. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.