Citation Nr: A21020642 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 211215-204653 DATE: December 29, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction (ED) and chronic kidney disease (CKD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that diabetes mellitus manifests by requiring one or more daily injection of insulin, a restricted diet, and regulation of activities. CONCLUSION OF LAW The criteria for Entitlement to a rating in excess of 20 percent for diabetes mellitus type II with ED and CKD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served ib active duty from January 1966 to March 1967, and from March 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2021 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in December 2021 and chose the Direct Review option. The Board notes that the Veteran filed a claim for service connection for CKD in September 2018, and service connection for CKD was granted in an April 2020 Board decision. A subsequent April 2020 rating decision implementing the Board's decision gave the CKD a noncompensable rating, and included the disability as part of the service-connected diabetes mellitus. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II with ED and CKD The Veteran is currently in receipt of a 20 percent rating under Diagnostic Code (DC) 7913 for diabetes mellitus with ED and CKD. After a thorough review of the evidence, the Board finds a higher rating is not warranted. The reasons follow. Diabetes mellitus is evaluated under the endocrine system, DC 7913. Under this DC, a 20 percent rating is warranted where diabetes mellitus requires one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted where there is diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 60 percent rating is warranted where there is diabetes mellitus 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 evaluated separately. Id. A 100 percent rating is warranted where there is diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. Id. In a July 2018 rating decision, the RO increased the Veteran's rating to 20 percent under DC 7913 effective June 27, 2018 based on his requirement for an oral hypoglycemic agent. The medical record does not support a finding that a higher rating is warranted. VA treatment records since June 2018 document the diabetes mellitus was stable and managed with medications. A May 2021 VA examiner documented that the Veteran took an oral hypoglycemic agent, but stated the Veteran had no regulation of activities, visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month, had no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations in the last year, and had no loss of strength or weight. As the preponderance of the evidence does not support a finding that symptoms of diabetes mellitus require one or more daily injection of insulin, nor does it support a finding that the Veteran requires regulation of activities, the Veteran does not meet the criteria for a 40 percent rating for diabetes mellitus, a rating in excess of 20 percent for diabetes mellitus is denied. Additionally, Diagnostic Code 7913 notes that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation; noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 and Note 1. First, the Board notes the Veteran has been awarded separate, compensable disability ratings for his complications of peripheral neuropathy of the bilateral upper and lower extremities. The Board finds that a separate, compensable rating is not warranted for the Veteran's ED. DC 7522 provides the rating criteria for erectile dysfunction, with or without penile deformity. Under the DC 7522 criteria, erectile dysfunction, with or without penile deformity, is afforded a noncompensable rating. Hence, the Veteran's ED is noncompensable and will still be considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 and Note 1. The Board finds that a separate, compensable rating is not warranted for the Veteran's CKD. 38 C.F.R. § 4.115a provides the rating criteria for renal dysfunction, and it was revised effective November 14, 2021. See 38 C.F.R. § 4.71a; 86 Fed. Reg. 54085 (Sept. 30, 2021). When regulations are revised during the course of an appeal, as here, the Board is required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the claimant. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change; there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the old 38 C.F.R. § 4.115a criteria, a noncompensable rating is warranted with albumin and casts with a history of acute nephritis or noncompensable hypertension under Diagnostic Code 7101. A 30 percent rating is warranted with constant or recurring albumin with hyaline and granular casts or red blood cells; transient or slight edema; or hypertension at 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted with constant albuminuria with some edema; a definite decrease kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is warranted with persistent edema and albuminuria with BUN 40 to 80 mg%; 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 for renal dysfunction requiring dialysis; or renal dysfunction precluding more than sedentary activity from one or more of the following: persistent edema and albuminuria, BUN more than 80mg%; creatinine more than 8 mg%, or markedly decreased function of the kidney or other organ systems, especially cardiovascular. Under the new 38 C.F.R. § 4.115a criteria, a noncompensable rating is warranted with GFR from 60 to 89 mL/min/1.73 m2 and albumin/creatinine ratio (ACR) 30 mg/g for at least 3 consecutive months during the past 12 months. A 30 percent rating is warranted with GFR from 60 to 89 mL/min/1.73 m2 and structural kidney abnormalities (cystic, obstructive, or glomerular) for at least 3 consecutive months during the past 12 months; or GFR from 60 to 89 mL/min/1.73 m2 and either recurrent red blood cell (RBC) casts, white blood cell (WBC) casts, or granular casts for at least 3 consecutive months during the past 12 months; or CKD with GFR from 45 to 59 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. A 60 percent rating is warranted with CKD with GFR from 30 to 44 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. An 80 percent rating is warranted with CKD with GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. Additionally, a note states GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR will be accepted for evaluation purposes under § 4.115a when determined to be appropriate and calculated by a medical professional. There is no medical evidence in the claims file since November 14, 2021, the date the new 38 C.F.R. § 4.115a criteria became effective. Therefore, the preponderance of the evidence is against finding the Veteran had a compensable rating under the new criteria. A noncompensable rating is also warranted under the old 38 C.F.R. § 4.115a criteria. The preponderance of the evidence is against finding VA treatment records showed evidence of recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema. To warrant a 10 percent rating under DC 7101, the Veteran would have to show evidence of 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. VA treatment records do show the Veteran was diagnosed with hypertension. However, VA treatment records revealed diastolic blood pressure readings between 58 and 79, and systolic blood pressure findings between 110 and 152. Thus, the preponderance of the evidence is against finding the Veteran met any of the aforementioned criteria to warrant a 10 percent rating under DC 7101. The Veteran contended a 60 percent rating was warranted under the old criteria for 38 C.F.R. § 4.115a, as he stated he had a definite decrease in kidney function. The Veteran stated this was evidenced by VA treatment records that showed the Veteran had an eGFR of 59 in September 2011, 59 in April 2014, and 54 in November 2014. The Veteran also pointed to VA treatment records that assessed the Veteran as having stage III CKD in June 2014, November 2014, and September 2015. The Board recognizes that a private medical evaluation cited to these findings and stated the Veteran had renal complications of diabetes mellitus. The Board acknowledges these findings in VA treatment records and the private medical evaluation. However, since the Veteran's September 21, 2018 application for CKD, medical records have shown findings inconsistent with a definite decrease in kidney function. In September 2018, eGFR findings were greater than 60. In March 2020, a comprehensive metabolic panel revealed the Veteran had normal kidney function. A May 2021 VA examiner noted the Veteran had renal dysfunction that manifested in symptoms of lethargy, weakness, and limitation of exertion. However, the examiner did not note proteinuria, edema, anorexia, weight loss, generalized poor health, limitation to sedentary activity, or markedly decreased function of other organs due to renal dysfunction. The VA examiner also did not note the Veteran had symptomatic renal tubular disorder, or frequent attacks of colic with infection. She stated the Veteran took medication for CKD, but did not require dialysis. The Board finds the lab results since September 21, 2018 probative as they document objective evidence showing the Veteran's kidney function improved since the 2011, 2014, and 2015 lab findings cited to by the Veteran. Additionally, the Board affords more weight to the lab findings since September 21, 2018 than those prior to that date as the findings since September 21, 2018 were from the relevant period on appeal. The Board also affords more weight to the findings of the VA examiner than to the pre-September 2018 lab findings as the VA examiner reviewed the entire medical record, personally examined the Veteran, and offered findings consistent with the normal findings in the medical record since September 21, 2018. Therefore, the preponderance of the evidence is against finding the Veteran's disability picture met the requirements to warrant a compensable rating under 38 C.F.R. § 4.115a for CKD. Since a noncompensable rating is warranted for the Veteran's CKD, this noncompensable complication of diabetes mellitus will still be considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 and Note 1. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Patton 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.