Citation Nr: 21028755 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-54 928 DATE: May 12, 2021 ORDER Entitlement to an initial rating in excess of 60 percent for diabetic nephrology is denied. FINDING OF FACT The diabetic nephrology does not result in persistent edema, creatinine of at least 4mg%, generalized poor health, BUN to greater than 80mg%, markedly decreased function, or need for regular dialysis, and it does not preclude more than sedentary activity. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 60 percent for diabetic nephrology are not met. 38U.S.C.§1155; 38C.F.R.§§ 4.115a, 4.115b, Diagnostic Code 7541. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1967 to March 1971, including service in the Republic of Vietnam. In April 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. This matter was previously before the Board, most recently in February 2021, when this issue was remanded for additional development. Increased Rating 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 Diagnostic Codes. 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). Moreover, 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. Under Diagnostic Code 7541, renal involvement in diabetes mellitus, sickle cell anemia, systemic lupus erythematosus, vasculitis, or other systemic disease processes must be rated as renal dysfunction. 38 C.F.R. § 4.115b. Under Diagnostic Code 7541, a 60 percent rating is warranted for a renal dysfunction resulting in constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for a renal dysfunction resulting in persistent edema and albuminuria with blood urea nitrogen (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 for renal dysfunction that requires 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 8% mg; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Relevant records include a June 2017 VA treatment record, July 2018 VA examination record, August 2017, January, February, April, June, and August 2018 VA lab results, July 2020 VA examination record, and a March 2021 VA medical addendum. After review of the record, the Board finds a rating in excess of 60 percent is not warranted at any point of the appeal, which dates from June 21, 2017. The record is absent any evidence of creatinine at or above 4+ mg, BUN greater than 80% mg, markedly decreased function of kidney or other organ function, or need for regular dialysis, and the record does not suggest that the nephrology precludes more than sedentary activity. Notably there are no histories or clinical findings indicative or even suggestive of any of the foregoing criteria. The record does include some findings of microalbuminuria with BUN between 40 and 80%mg in 2018. The record does not suggest that the Veteran has persistent edema as required for a higher rating, however. VA treatment records consistently report negative findings for edema, and the July 2020 VA examiner determined the renal dysfunction would result in at most transient edema. The Board notes that the 80 percent rating requires persistent edema and albuminuria with BUN 40 t0 80%mg. Thus, a higher rating is not warranted on this basis. Finally, the Board finds the nephrology does not result in generalized poor health. Although the record includes histories of fatigue on March 23, 2017, and June 5, 2017, prior to the appeal period, and evidence of weakness, fatigue, and loss of energy in July 2020, the record does not suggest that the renal dysfunction and associated symptoms results in "poor" health. There are no findings of poor health, VA treatment records predominantly report that the Veteran was in no active distress (except for in April 2018, when he is noted to be in mild distress) and indicate generally stable weight, and the 2017 and 2020 VA examination records indicate that the Veteran did not have generalized poor health due to renal dysfunction In a March 2021 addendum opinion, a VA examiner indicated that the weakness initially experienced by the Veteran was not due to Stage 3 diabetic nephropathy. Finally, the Veteran has not reported poor health due to the renal dysfunction. In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to an initial rating in excess of 60 percent. Thus the appeal must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.