Citation Nr: 21070428 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-28 051 DATE: November 23, 2021 REMANDED Entitlement to an effective date prior to January 23, 2008 for nephropathy as a residual of diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1978 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this decision, the RO granted service connection for diabetic nephropathy with renal dysfunction with an evaluation of 30 percent, effective October 21, 2011. In June 2014, the Board remanded the claim of entitlement to an effective date earlier than October 21, 2011 for the award of diabetic nephropathy with renal dysfunction. The Veteran requested a Board hearing in a July 2015 VA Form 9. In December 2018, the Veteran, via his representative, withdrew his request for a hearing. See December 2018 Statement in Support of Claim. No subsequent hearing request has been received. In February 2019, the Board, in relevant part, remanded the claim for further development. Specifically, the Board directed the RO to obtain an addendum opinion to the December 2011 VA examination. Further, the Board directed that a VA examiner evaluate laboratory results from January 2005 to October 2011 and determine the earliest date upon which the evidence shows that the Veteran developed diabetic nephropathy. In connection with the claim, an addendum opinion was associated with the claims file in September 2021. The Board finds that this medical opinion is inadequate. As such, further remand is required as there has not been substantial compliance with the Board's February 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). In a September 2021 rating decision, the RO granted entitlement to an effective date of January 23, 2008 as to the Veteran's diabetic nephropathy claim. However, as this is not a full grant of the benefit sought, the appeal remains in an appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to an effective date prior to January 23, 2008 for nephropathy as a residual of diabetes mellitus is remanded. In its February 2019 Remand, the Board noted that the record contained several urinalysis test results prior to both 2008 and 2011 that had no interpretation or explanation as to whether they establish nephropathy. See March 2014 CAPRI at 662, 659 (showing Creatinine of 1.0 in May 2006, Creatinine of 0.8 in February 2007, Creatinine at 0.8 in January 2008 and Creatinine at 0.9 in April 2008); March 2014 CAPRI at 654, 652, 644 (showing eGFR of 107 in March 2009, eGFR of 107 in November 2009 and eGFR of 106 in June 2011); and June 2015 CAPRI at 413, 364, 355, 333, 32, 319 (showing Urea Nitrogen at 16 in January 2006, Urea Nitrogen at 13 in July 2007, Urea Nitrogen of 14 in April 2008, Urea Nitrogen of 17 in August 2008, Urea Nitrogen of 13 in January 2009 and Urea Nitrogen of 15 in July 2009). Thus, the Board directed that a VA examiner evaluate the numerous laboratory test results from January 31, 2005 to October 21, 2011 and determine the earliest date upon which evidence showed the Veteran developed diabetic nephropathy. In a September 2021 opinion, the examiner noted that the VA e-folder was reviewed. The examiner stated that based on a private medical record (authored by Dr. S.) there was evidence of "protein in the area" from January 23, 2008. The examiner further noted that proteinuria was also noted on October 21, 2011. The examiner also reported that diabetic nephropathy has five stages and that the first stage of the hyper function/hyper filtration stage that shows a normal GFR but albumin excretion is less than 30 mg/day. The examiner then stated that the Veteran had known diabetes with elevated and glucose levels and evidence of proteinuria in the urine from exam stated 2000 and 2011, but that he was unable to locate an instance of proteinuria before 2008. The examiner then concluded that based solely on the medical record, it appeared that the Veteran had evidence of proteinuria in 2008 which can be a sign of stage I neuropathy. Additionally, the examiner noted, under the heading "EVIDENCE COMMENTS" that the Veteran's CMPs, dated June 2011, February 2011, January 2008, and July 2007 showed normal GFR. The examiner also noted that the Veteran's CMP, dated November 2009, showed normal GFR and creatine. Also, associated with the claims file is a Kidney Conditions (Nephrology) DBQ, dated October 2021. In the Medical History section of the report, the examiner noted that the Veteran's diabetic nephropathy onset in "2008?" and was discovered by laboratory testing and follow up. Here, it is unclear whether the September 2021 examiner evaluated all of the laboratory results, as requested, to specifically include those dated January 2006, May 2006, and February 2007. Because it is unclear whether such laboratory results were reviewed and analyzed, the Board must remand the claim. Further, the September 2021 examiner concluded that he was unable to locate an instance of proteinuria before 2008. On remand, the examiner is instructed to also consider evidence of renal dysfunction in the claims file, which includes either persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2. Lastly, the Board acknowledges the portion of the opinion where the examiner noted "evidence of proteinuria in the urine from exam stated 2000." While the Board presumes that this was a typographical error as there is no examination of record dated 2000, on remand, this notation can also be clarified. The matter is REMANDED for the following action: 1. Return the record, to include a copy of this Remand, to the VA examiner who completed the September 2021 medical opinion or, if unavailable, another appropriately qualified examiner. The Board is interested in ascertaining when the Veteran was first diagnosed with diabetic neuropathy pursuant to the criteria in Diagnostic Code 7541, renal dysfunction (either persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2). The examiner is asked to evaluate all laboratory test results, dated prior to January 23, 2008 (the currently assigned effective date), and to determine the earliest date upon which evidence shows the Veteran developed diabetic nephropathy. Here, the examiner should specifically elaborate on laboratory results dated January 2006, May 2006, and February 2007. The examiner should support the opinion with detailed rationale including citation to any diagnostic test results and medical treatment records which support the examiner's findings. 2. Then re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.