Citation Nr: 21022307 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-48 716 DATE: April 15, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for chronic renal disease with hypertension is denied. Entitlement to a total disability based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s chronic renal disease with hypertension has not been characterized by constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension with diastolic pressure predominantly of 120 or more since the grant of service connection. 2. The Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 30 percent for chronic renal disease with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7541. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1967 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in February 2021. A transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. Entitlement to an initial rating in excess of 30 percent for chronic renal disease with hypertension The Veteran seeks a rating in excess of 30 percent for chronic renal disease with hypertension. He contends that a 60 percent rating is warranted for definite decrease in kidney function, because his creatinine levels are high at 1.6 mg/dL. He asserts having decreased kidney function sufficient to support a higher rating. In the June 2015 rating decision on appeal, the RO granted service connection for chronic renal disease as secondary to diabetes mellitus and assigned a 30 percent disability rating from July 21, 2014 pursuant to 38 C.F.R. §4.115b, DC 7541. Under Diagnostic Code 7541, renal involvement in diabetes mellitus is rated as renal dysfunction. Renal dysfunction is rated at 30 percent for 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 warranted for 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 warranted for 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 100 percent rating is warranted where regular dialysis is required, or more than sedentary activity is precluded from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. §4.115b, DC 7541. Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. 38 C.F.R. §4.104, DC 7101. The term “predominant” is not defined in the rating criteria. Merriam-Webster defines predominant to mean “being most frequent or common.” See, e.g., “predominant,” Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. The Veteran underwent a VA examination in May 2015. The examiner diagnosed chronic renal disease. The examiner noted symptoms of recurring proteinuria, some edema due to renal dysfunction, and slight edema due to renal dysfunction. The Veteran did not require regular dialysis, frequent attacks of colic with infection, or symptomatic renal tubular disorder. Lab panel diagnostic tests revealed creatinine at 1.1 mg/dL. The examiner found that the Veteran’s kidney condition did not impact his ability to work. A VA examination for the Veteran’s hypertension recorded blood pressure readings of 160/84, 180/72, and 176/84. The Veteran was afforded a VA examination in July 2017. The examiner diagnosed chronic renal disease. The Veteran did not have symptoms of recurring proteinuria, hematuria, did not require regular dialysis, have frequent attacks of colic with infection, or symptomatic renal tubular disorder. Lab panel diagnostic tests revealed creatinine at 1.3 mg/dL at the examination. The examiner reviewed the Veteran’s BUN, creatinine, and GFR laboratory data from May 2010 through May 2017. She noted that the Veteran had a single creatinine of 1.6 in January 2016, along with an incredibly elevated A1C. However, she found that the Veteran had been able to get better control of his diabetes, and that his current creatinine and BUN were both within normal limits. She thus concluded the Veteran still had a diagnosis of chronic renal disease, but not renal failure. The examiner found that the Veteran’s kidney condition did not impact his ability to work. A VA examination for the Veteran’s hypertension recorded blood pressure readings of 132/63, 120/59, and 130/62. VA treatment notes recorded blood pressure readings of 135/67 in February 2015, 180/89 to 150/80 after a 20 minute rest in November 2017, 155/79 in March 2018, and 152/68 in January 2017. VA treatment laboratory tests revealed creatinine at 1.0 Hmg/dL in March 2011, at 1.3 Hmg/dL in August 2014, 1.5 Hmg/dL in September 2014, 1.0 Hmg/dL in February 2015, and 1.1 Hmg/dL April 2015, 1.6 in January 2016, 1.1 in February 2016, 1.4 in March 2016, 1.0 in April 2016, 1.0 in May 2016, 1.3 in February 2017, 1.3 in July 2017, 1.2 in February 2018, 1.5 in July 2019, and 1.6 in September 2019. Diagnostic tests showed in April 2016 BUN at most at 27 mg/dL. VA treatment notes show intermittent mild lower extremity edema. However, at a November 2017 cardiology visit, the physical examination was negative for edema. After careful review of the clinical findings, the Board finds that the Veteran did not have symptoms more nearly approximating constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. For this reason, a rating in excess of 30 percent is not warranted. VA medical records reveal recurring, but not constant, proteinuria or albuminuria with some edema. The May 2015 VA examination reported noted recurring proteinuria with some edema due to renal dysfunction. VA medical records similarly indicate intermittent or mild edema at the beginning of the appeal period, but do not indicate constant proteinuria or albuminuria needed to warrant a higher 60 percent rating. VA medical records do not reveal a definite decrease in kidney function. The May 2015 VA examination noted that a diagnostic test showed creatinine at 1.1 Hmg/dL. A January 2016 and September 2019 lab diagnostic test showed creatinine at 1.6 Hmg/dL, slightly above the reference range of the test. However, the VA examiner explained that creatinine and BUN levels vary over time. While the Veteran had a creatinine of 1.6 in January 2016 and September 2019, these findings were not consistently shown across the laboratory findings reviewed. Thus, VA examination reports, medical records, and lab diagnostic tests do not reveal a definite decrease in kidney function. Finally, a higher rating for hypertension that is at least 40 percent disabling under DC 7101 is not warranted unless diastolic pressure is predominantly 120 or more. A review of the medical records and VA examination report did not reveal that the Veteran’s diastolic pressure ever reached 120 or more. Thus, the Veteran’s hypertension did not manifest in diastolic pressure predominantly 120 or more. Accordingly, his associated hypertension does not more nearly approximate the criteria corresponding to at least a 40 percent rating under DC 7101 that could support a higher 60 percent rating under Diagnostic Code 7541. The VA treatment records do not indicate generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion due to kidney dysfunction. Further, there is no indication in the medical record that the Veteran is on dialysis. In light of the foregoing, the Board concludes that the preponderance of the evidence is against a rating in excess of 30 percent for chronic renal disease with hypertension and the claim must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 2. Entitlement to a total disability based upon individual unemployability (TDIU) The Veteran seeks a TDIU. A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). It is also the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16 (b). The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray v. Wilkie, 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is “whether the [V]eteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service-connected for: chronic renal disease with hypertension associated with diabetes mellitus (rated 30 percent from July 21, 2014); diabetes mellitus (rated at 20 percent from April 7, 2010); and left and right lower extremity peripheral neuropathy associated with diabetes mellitus (each rated at 10 percent from January 29, 2015). The Veteran has a single service-connected disability, diabetes with its associated complications, ratable at 60 percent from January 29, 2015. He meets the schedular criteria for a TDIU from January 29, 2015. The preponderance of the evidence does not show his service-connected disabilities alone render him unable to secure and follow a substantially gainful occupation. The Veteran’s VA Form 21-8940 reflects that he completed 2 years of college. He reported that he worked for and managed Caster Roofing Services, Inc., as a roofer from 2009 to September 2013. The Veteran reported that diabetes prevented him for maintaining employment. He reported that he was physically unable to work as a roofer due to hyperosmolar hyperglycemic syndrome (HHS) and bilateral artificial knees. The Veteran testified before the undersigned that he finds it difficult to hold tools, and that his stamina limits his ability to work full time. A VA examiner in May 2015 noted that the Veteran’s diabetes mellitus resulted in no functional limitation on his ability to work. A VA examiner noted that the Veteran’s renal disease resulted in no functional limitation on his ability to work. The Veteran was afforded a VA examination in July 2017. A VA examiner found the Veteran’s diabetes resulted in no functional limitation on his ability to work. The examiner found the Veteran’s renal disease resulted in no functional limitation on his ability to work. The examiner further noted symptoms of mild pain, paresthesias, numbness, and decreased sensation in the bilateral lower extremities. However, she found the Veteran’s peripheral neuropathy resulted in no functional limitation on his ability to work. The Veteran submitted a private vocational assessment in support of his claim in February 2021. The clinician noted the Veteran was diagnosed with service-connected diabetes mellitus, diabetic neuropathy, and renal disease, as well as limitations stemming from his nonservice-connected lumbar spine infection and paralysis, and bilateral knee replacements. She indicated that the Veteran experienced spasms in his feet with uncontrollable movements. The clinician indicated that the Veteran had an infection in his spine which caused paralysis in his legs; he has been receiving daily nursing care and physical therapy as a result. He had been living at a rehabilitation facility for the past year to improve his ability to ambulate independently. She opined that his lower extremity neuropathy affected his ability to climb ladders and maintain balance; and his non-service-connected left upper extremity neuropathy affected his ability to grip objects. She concluded that the Veteran is not recommended for competitive employment due to his numerous service-related physical diagnoses. Based on the available evidence, the Board finds a TDIU is not warranted. The Veteran testified that he would have trouble working as a roofer due to his diabetes. He reported that he would have difficulty holding tools, and that his disabilities impacted his industrial functioning. Regarding physical functioning, VA examiners have found that the Veteran’s service-connected diabetes mellitus, peripheral neuropathy, and renal disease do not result in significant functional limitations. The July 2017 VA examiner noted that peripheral neuropathy included symptoms of pain, numbness, paresthesias, and reduced sensation, however the 2015 and 2017 examiners found that the Veteran’s diabetic disability did not impact his ability to work. No VA examiner has opined that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities alone. While the private vocational evaluation reported more severe symptoms and impairment, such findings are inconsistent with the Veteran’s VA treatment records and the other VA examinations of record. To the extent that the private opinion indicates significantly more severe symptoms than the other opinions of record, such opinion is outweighed by the findings of multiple other clinicians and treatment providers reported over the course of the period on appeal. In this regard, the other VA evaluations and the Veteran’s treatment records do not indicate the presence of motor control difficulties, spasms, or significant fatigue. Instead, the other relevant evidence establishes that the Veteran possesses at least intact strength, motor control, and reflexes. The other examiners also did not find that his diabetes and associated complications precludes substantially gainful employment. Further, to the extent the private vocational evaluation considered symptoms limiting the Veteran’s ability to manipulate, grip, and grasp objects, the Veteran’s upper extremity neuropathy is not currently service-connected and cannot be considered for a TDIU. Thus, the Board gives the private vocational evaluation little weight. The Board acknowledges that the Veteran’s nonservice-connected conditions, to include paralysis from a lumbar spinal infection, bilateral knee replacements, and reported upper extremity neuropathy, significantly impair his physical ability to perform occupational activities. At his hearing, the Veteran was in the hospital and confined in a wheelchair due to his lumbar spine infection. The Veteran’s nonservice-connected disabilities clearly affect his ability to work, however, they are not service-connected and cannot be considered for a TDIU. Moreover, the Veteran’s lengthy work history during which he ran his own roofing company with employees suggests that he has experience managing a business and employees, which would not necessarily require him to engage in heavy physical labor. Regarding mental functioning, there is no evidence that the Veteran’s diabetes would impact his occupational functioning. No mental impairment is alleged by the Veteran due to his service-connected conditions, and no mental impairment is noted by either the VA examiners or private vocational clinician. The Board notes that while the Veteran did not complete college, he managed his own roofing company, and had employees during the busier seasons, for decades from 1975 after he was discharged from active service until 2015. The Court in Ray held that the appropriate standard for the Board when determining whether to remand a claim for TDIU pursuant to §4.16 (b) is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Based on the Board’s review, the evidentiary record fails to demonstrate that the Veteran has been unemployable due solely to his service-connected disabilities at any time during the appeals period. Accordingly, there is no basis to refer this matter to the Director of Compensation Services for extraschedular consideration. The preponderance of the competent and probative evidence is against the claim. As such, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a TDIU is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, Associate Counsel 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.