Citation Nr: 21008485 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-42 190 DATE: February 17, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for nephropathy with hypertension is denied. REMANDED In addition, the issue of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and entitlement to an effective date earlier than February 8, 2013 for the assignment of a 50 percent rating for PTSD is remanded. FINDING OF FACT The probative evidence of record does not demonstrate that the Veteran’s nephropathy with hypertension manifested in constant albuminuria with some edema; a definite decrease in kidney function; or diastolic blood pressure predominantly 120 or more. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for service-connected diabetic nephropathy with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.115(a), 4.115(b), Diagnostic Codes 7101, 7541. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1967. In October 2019, the Veteran testified at a Board hearing before the undersigned. A transcript is of record. The Veteran’s claims were most recently before the Board in February 2020 wherein they were remanded for additional development. Unfortunately, there was not substantial compliance with the Board’s remand related to PTSD and a subsequent remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings 1. Entitlement to an initial rating in excess of 30 percent for nephropathy with hypertension The Veteran contends that an increased rating is warranted because his nephropathy with hypertension has an overall impact on his ability to work and complete daily life activities, although the exact impact was not laid out. See document titled Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief), received January 6, 2021. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In this case, separate evaluations are not warranted because the Veteran’s symptomology has been similar during the period at issue. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran’s diabetic nephropathy with hypertension is assigned a 30 percent rating, effective February 8, 2013, (the effective date upon which service connection was granted), pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7541. In turn, Diagnostic Code 7541 provides that the disability should be rated as renal dysfunction under the criteria of 38 C.F.R. § 4.115a. For renal dysfunction, a 30 percent rating is assigned where 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. A 60 percent rating is assigned where constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating is assigned where there is persistent edema and albuminuria with BUN 40 to 80mg%; or creatine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is assigned where regular dialysis is required, precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Diagnostic Code 7101 provides that a 10 percent rating is assigned 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. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. A 60 percent rating is assigned for diastolic pressure predominantly 130 or more. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). The Board has considered the evidence of record and finds the contemporaneous VA medical records to be the most probative. The records since February 8, 2013 are silent for notes of albuminuria or a decrease in kidney function. The only medical visits during the period on appeal that directly reference kidney function both indicate that it is normal. See VA medical record August 13, 2013 and July 29, 2020. As for the Veteran’s hypertension, no diastolic reading reached 120, let alone readings predominantly at that level. Thus, the criteria for a higher 60 percent rating have not been met. Further, a higher 80 or 100 percent rating is not warranted as the record does not support that the Veteran’s diabetic nephropathy produced persistent edema and albuminuria with BUN 40 to 80mg%; or creatine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, limitation of exertion, or required regular dialysis precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Additional ratings under other diagnostic codes are similarly unwarranted as the Veteran’s diabetic nephropathy did not result in voiding dysfunction or other infections. The Board finds that the Veteran’s own report of symptomatology is credible, to include the impact on his daily living. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under any of the potentially applicable criteria. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability ratings, his complaints along with the medical findings do not meet the schedular requirements for a higher rating than now assigned, as explained and discussed above. He has not specified other symptoms that are related but not contemplated by the rating schedule. Accordingly, the Board finds that a preponderance of the evidence is against an initial rating in excess of 30 percent for nephropathy with hypertension. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. The issue of entitlement to a rating in excess of 50 percent for PTSD is remanded. 3. The issue of entitlement to an effective date earlier than February 8, 2013 for the assignment of a 50 percent rating for PTSD is remanded. Per the Veteran’s representative, there was not substantial compliance with the Board’s remand related to PTSD and a subsequent remand is required. See document titled Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief), received January 6, 2021; See Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the Veteran’s claims related to PTSD to obtain Vet Center Treatment records relevant to the period on appeal. In response to the Remand, the Veteran contacted the agency of original jurisdiction (AOJ) and stated that “he was not receiving any treatment through the clinic in Sacramento after 2013 so there would be no records needed for that time period.” See VA 21-0820 Report of General Information, received May 26, 2020. The Board reviewed the available medical record. There does not appear to be a complete treatment record from the Sacramento Veteran’s Center. The last record the Board can find documenting treatment from the Sacramento Veteran’s Center was February 2011. A VA medical record in May 2012 indicated that the Veteran had stopped attending the Center because he did not find it helpful. Even so, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. See 38 C.F.R. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2). Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining the proper date for an increased rating requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record since one year prior to the date of the claim to determine when an increase in disability was “factually ascertainable” in terms of meeting or approximating the criteria for a higher rating. See id. at 521. Further, the Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given this, the evidence until last record from May 2012 from the Sacramento Veteran’s Center would provide insight into whether an increase in disability was “factually ascertainable” prior to February 2013. Thus, a remand to attempt to obtain these records is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the Vet Center in Sacramento, California. After authorization is received, obtain any treatment records for the period through 2017. Document all requests for information as well as all responses in the claims file. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.