Citation Nr: 21064528 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 15-08 831A DATE: October 20, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II (diabetes) with erectile dysfunction (ED) is denied. Entitlement to a 30 percent rating from February 15, 2012 to August 30, 2016 for diabetic nephropathy is granted. Entitlement to an increased rating in excess of 60 percent from August 30, 2016 to April 24, 2021 and 100 percent thereafter for diabetic nephropathy is denied. Entitlement to an increased rating in excess of 100 percent from February 1, 2012 to August 1, 2012 and 10 percent thereafter for transient ischemic attack is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's diabetes is not manifested by requiring insulin, restricted diet, and regulation of activities. 2. From February 15, 2012 to August 30, 2016, the Veteran's nephrology is manifested by renal dysfunction with 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. 3. From August 30, 2016 to April 24, 2021, the Veteran's nephrology is manifested by renal dysfunction with constant albuminuria with some edema; or definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. From April 24, 2021, the Veteran is in receipt of the highest available rating for his nephrology. 4. The Veteran's transient ischemic attack is not manifested by ongoing symptoms that warrant a higher rating under the applicable diagnostic code. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes are not met. 38 U.S.C. § § 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.120, DC 7913. 2. From February 15, 2012 to August 30, 2016, the criteria for entitlement to an increased rating of 30 percent, but no higher, for diabetic nephropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, DC 7541. 3. From August 30, 2016 to April 24, 2021, the criteria for entitlement to an increased rating in excess of 60 percent for diabetic nephropathy have not been met. The criteria for entitlement to an increased rating in excess of 100 percent for diabetic nephropathy from April 24, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, DC 7541. 4. The criteria for a rating in excess of 100 percent from February 1, 2012 to August 1, 2012 and 10 percent thereafter for transient ischemic attack are not met. 38 U.S.C. § § 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.124a, DC 8009. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to August 1970. The Veteran had a hearing before a Veterans Law Judge (VLJ) in August 2018. The Veteran was offered an opportunity for another hearing before a different Veterans Law Judge in October 2020 as the VLJ who heard his appeal was no longer available. However, the Veteran did not respond. Therefore, the Veteran was not scheduled for another hearing. However, the transcript was review in detail. These matters were previously before the Board, most recently in March 2021. These matters were remanded for further development. The development has been completed and the matters are again before the Board. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran said that he was taking insulin every day and on a restricted diet. The Vetearn said his doctor told him to walk at least 15 minutes a day. In August 2018, the Veteran said he received treatment for his diabetes once every three months and his kidneys once every four months. (See e.g. August 2018 hearing transcript.) Diabetes Claim The Veteran contends his diabetes is more severe than indicated by his 20 percent disability rating. The Veteran's diabetes mellitus is rated under DC 7913. Pursuant to DC 7913, a 10 percent rating is warranted for diabetes manageable by restricted diet only. A 20 percent rating is warranted where the diabetes requires insulin and a restricted diet or hypoglycemic agents and restricted diet. Important for this case, a 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Within the criteria for a 100 percent rating, "Regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. The Veteran has said he was on two types of medication for diabetes, that he took insulin, and had a nutritionist to help him with his meal planning. The Veteran also had to limit his exercise. (See January 2013 correspondence.) In his March 2015 Form 9, the Veteran said he believed his diabetes warranted a higher evaluation due to requiring insulin, restricted diet, and regulation of activities. The Veteran had an examination for his diabetes in September 2012. The examiner noted the Veteran used insulin more than once per day but did not have regulation of activities and saw his diabetic care provider less than twice per month. The Veteran also did not have any episodes requiring hospitalization in the past 12 months and had not had any unintentional weight loss due to his diabetes, but did have progressive loss of strength. The Veteran also was found to have diabetic nephropathy and erectile dysfunction due to his diabetes. The Veteran had an examination for his diabetes in December 2019 in which the examiner saw the Veteran in person, reviewed his file, and noted the Veteran still required insulin more than once per day, but did not have to regulate his activities. The Veteran saw his diabetic care provider less than twice per month and did not have any hospitalizations in the past 12 months and did not have any unintentional weight loss. The Board has also reviewed the Veteran's treatment records. The Veteran's record indicates he continues to seek treatment for diabetes. For example, in December 2011, a note indicated his diabetes treatment involved diet, oral agents, and insulin. In May 2012, it was noted the Veteran's diabetes was asymptomatic. The Veteran's record indicates that he takes insulin and has to regulate his diet. However, two examinations and the Veteran's objective treatment records do not indicate that he is required to regulate his activities. The Veteran has said that he regulates his activities and has been told by his physicians to walk 15 minutes a day. This would be an indication that the Veteran does not need to "limit" his activities, but he is, in fact, being asked to be active. While the Veteran may believe he needs to regulate his activities, the objective medical evidence of record does not indicate he needs to do so. Additionally, the objective evidence does not indicate the Veteran has been hospitalized for his diabetes or that he requires twice monthly or weekly visits to his diabetic care provider. Therefore, the Board finds the most probative evidence does not indicate the Veteran's diabetes warrants a higher rating. Nephrology Claim The Veteran's nephrology disability is rated under DC 7541. Under DC 7541, the Veteran's condition is to be rated as a renal dysfunction. The Veteran contends his disability is worse than indicated by his noncompensable rating prior to August 30, 2016 and 60 percent rating until April 24, 2021. From April 24, 2021, the Veteran is in receipt of a 100 precent disability rating for his nephrology. A 100 percent rating is warranted for a renal dysfunction requiring 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 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted for renal dysfunction with 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 60 percent rating is warranted for renal dysfunction with constant albuminuria with some edema; or definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. A 30 percent rating is warranted for renal dysfunction with 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. A noncompensable rating is warranted for renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension non-compensable under DC 7101. Prior to August 30, 2016, the Veteran's nephropathy is rated as noncompensable. The Veteran had an examination for his diabetes in September 2012 in which he was found to have diabetic nephrology. At this examination, the Veteran's blood pressure was 135/70, 133/72, and 133/70. The Veteran's BUN was 19 and his creatinine was 1.10. In September 2012, the Veteran's BUN was 19 and his creatinine was 1.10. In December 2013, the Veteran's creatinine 1.27 and his albumin 3.5. During this time, the Veteran was consistently found to have constant albumin. However, the Veteran's record did not indicate he had some edema or definite decrease in kidney function. Additionally, the Board notes that the Veteran's hypertension has not been found to be due to his diabetes. Thus, the Board finds that prior to August 30, 2016 warrants a 30 percent rating, but no higher. The effective date for the grant of his benefit will be February 15, 2012, the date VA received his claim for an increased rating. From August 30, 2016 to April 24, 2021, the Veteran's nephrology is rated as 60 percent disabling. The Veteran had an examination for his nephrology in December 2019. The examiner saw the Veteran in person, reviewed the Veteran's file, and noted the Veteran did not require regular dialysis, but did have persistent albuminuria. The examiner opined the Veteran did not have hypertension or heart disease due to his renal dysfunction. The Veteran's BUN in July 2019 was 31, his creatinine was 2.42. The Board has also reviewed the Veteran's treatment records. While there are several lab results for his BUN and creatinine levels, none indicate his nephrology warrants a higher rating. For example, in October 2017, the Veteran had no symptoms of nephropathy. His BUN was 31 and his creatinine 1.39. In January 2018, the Veteran's BUN was 18 and his creatinine 1.42. In May 2018, his creatinine was 1.36 and his albumin was 3.4 and his BUN was 13. In April 2021, the Veteran's BUN was 47 and his creatinine was 7.13. Again, the Veteran's record does show that the Veteran suffers from hypertension, but as the December 2019 examiner reported, his hypertension is separate and not due to his diabetes. During this time, the Veteran's nephrology clearly continued to be a problem for the Veteran. However, during this time, the Veteran's record does not indicate he had renal dysfunction with 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. Therefore, a higher rating is not warranted during this time. On April 24, 2021, the Veteran had another examination for his nephrology. As of this date, the Veteran has been granted a 100 percent evaluation. As this is the highest available rating, no discussion of a higher rating from this date is required. Transient Ischemic Attack Claim The Veteran's ischemic attack is rated under DC 8009. DC 8009 says that vascular conditions will be rated as 100 percent for six months and then residuals will be rated as 10 percent disabling thereafter. In a December 2019 examination for his central nervous system, the Veteran mentioned he had a transient ischemic attack in 2012 but denied any residual symptoms such as weakness, swallowing problems, or respiratory problems. The Veteran was granted a 100 percent disability rating from January 26, 2012, the date of his attack, for six months. From August 1, 2012, the Veteran's rating was 10 percent, as prescribed by DC 8009. The Board has reviewed the Veteran's record and does not find objective indications that the Veteran is still suffering from ongoing symptoms as a direct result of his stroke in 2012. Therefore, the Board finds the Veteran is appropriately rated for his condition as prescribed by law under the requirements of DC 8009. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding the claims above, the Board acknowledges the Veteran's statements that his conditions continue to affect his daily life and still causes symptoms. The Board has also considered the Veteran's statements about his symptoms. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his complex medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations, medical records, and objective records on file and has weighed them as discussed above and discussed the relative probative value of each. The Board finds the examinations of record to be adequate because the examiners saw the Veteran in person, reviewed his record, and performed all necessary testing. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore. This does not mean that the Veteran's conditions do not cause him problems; clearly, his conditions are serious. The only question is the degree. Thus the Board has awarded an increased rating for one period on appeal. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has not explicitly raised the issue. However, examinations of record have indicated the Veteran's condition interfere with his ability to work and the Veteran has said that he has been put on restricted duty due to his service-connected eye condition. The Veteran also meets the schedular requirements for a TDIU. However, it is not clear from the record whether the Veteran is still working or not. Thus, a remand is required to elicit more information from the Veteran about his employment status. The matters are REMANDED for the following action: 1. The AOJ should obtain the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Send the Veteran the appropriate form to elicit current employment information, if any. If the Veteran does not wish to raise this issue, he should so indicate. 3. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he and his representative must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.