Citation Nr: 21042683 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-03 091 DATE: July 13, 2021 ORDER Entitlement to a disability rating higher than 60 percent prior to March 4, 2021, and higher than 80 percent since, for service-connected diabetic nephropathy with hypertension is denied. But a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) at the "housebound rate" also is granted. FINDINGS OF FACT 1. Prior to March 4, 2021, the Veteran's diabetic nephropathy with hypertension was manifested, at worst, by definite decrease in kidney function; it since has not required regular dialysis, and he has not been limited to sedentary activity due to renal dysfunction. 2. However, his service-connected posttraumatic stress disorder (PTSD) has been so severe as to preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when also considering his level of education, prior work experience and training. 3. His award of a TDIU is primarily predicated on his service-connected PTSD, and he has other service-connected disabilities that are independently ratable as at least 60-percent disabling. CONCLUSIONS OF LAW 1. Prior to March 4, 2021, the criteria are not met for entitlement to a rating higher than 60 percent for the diabetic nephropathy with hypertension, and since March 4, 2021 the criteria are not met for a rating higher than 80 percent for this service-connected disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.7, 4.115a, 4.115b, Diagnostic Code (DC/Code) 7542. 2. But the criteria are met for a TDIU. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 3. The criteria also are met for SMC at the "housebound rate". 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to February 1971. In February 2020, in support of these claims, the Veteran and his wife testified during a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In January 2021, the Board denied the Veteran's claims for a rating higher than 50 percent for his PTSD prior to February 16, 2017, and for a rating higher than 70 percent since. However, the Board instead remanded his remaining claims for a rating higher than 60 percent for his diabetic nephropathy and a TDIU for further development and consideration. In an April 2021 decision since issued, on remand, the rating for the diabetic nephropathy was increased from 60 to 80 percent as of March 4, 2021. However, a rating higher than 60 percent prior to that date continued to be denied, as was a rating higher than 80 percent since and a TDIU. So, aside from the TDIU claim, this appeal now concerns whether a rating higher than 60 percent was warranted for the diabetic nephropathy prior to March 4, 2021, and whether a rating higher than 80 percent has been warranted since. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating and for all periods at issue, does not abrogate a pending appeal). 1. Entitlement to a disability rating higher than 60 percent for the diabetic nephropathy with hypertension prior to March 4, 2021, and to a rating higher than 80 percent since Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the claimant's favor. 38 C.F.R. § 4.3. The Veteran's diabetic nephropathy with hypertension is rated under Diagnostic Code 7541, which instructs that renal involvement in diabetes mellitus is to be rated under the criteria for renal dysfunction. 38 C.F.R. § 4.115a. According to the criteria for rating renal dysfunction, a 60 percent rating is warranted where there is constant albuminuria with some edema or definite decrease in kidney function or hypertension at least 40-percent disabling under Diagnostic Code 7101. 38 C.F.R. § 4.115a. An 80 percent rating requires 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. Id. A 100 percent evaluation is assigned for renal dysfunction requiring 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. Id. Under Diagnostic Code 7101 for hypertension, the highest schedular rating available is 60 percent. 38 C.F.R. § 4.104. Thus, the Veteran cannot receive a higher rating under this other diagnostic code since he already had this rating until March 4, 2021 and since has had an even higher 80 percent rating. Consequently, this other diagnostic code will not be discussed further in this decision. During a May 2017 VA examination, the Veteran reported that he had to limit strenuous activities to avoid hypoglycemic episodes owing to this diabetes. The examiner indicated the Veteran was not required to take continuous medication for his renal dysfunction and did not need regular dialysis. There was no history of recurrent symptomatic urinary tract or kidney infection. The Veteran did not have kidney, ureteral, or bladder calculi, and there were no neoplasms or metastases reported. His blood pressure was 130/68, 128/68 and 124/62. His creatine was 1.56, and his BUN was 18. The examiner additionally indicated the Veteran's nephropathy did not impact his ability work. VA treatment records show no evidence of 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 certainly not prior to March 4, 2021. The Board acknowledges the Veteran's report that he is unable to participate in long term or vigorous physical activity; however, there is no evidence that he has what amounts to generalized poor health as a result or consequence. Moreover, there also was no evidence that the Veteran required regular dialysis or that his renal dysfunction precluded more than sedentary activity from one of the following: persistent edema and albuminuria, BUN more than 80 mg%, creatinine more than 8 mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular. The Board resultantly finds that, prior to March 4, 2021, the symptomatology resulting from the Veteran's diabetic nephropathy with hypertension, and their consequent effects, is most commensurate with his existing 60 percent rating. The Board finds that the preponderance of the evidence is against any higher rating for this time period. 38 C.F.R. §§ 4.115a, Diagnostic Code 7541. From May 4, 2021 onwards, the evidence of record does not show the Veteran's diabetic nephropathy with hypertension requires regular dialysis or precludes sedentary activity due to renal dysfunction. The Veteran underwent an additional VA examination in March 2021, on remand, during which the examiner indicated the Veteran's renal dysfunction results in lethargy, weakness, and persistent edema. BUN was 21, and creatinine was 1.42. However, as the Veteran's renal dysfunction did not require regular dialysis, and he was not limited to sedentary activity due to renal dysfunction, the criteria for a rating higher than 80 percent since March 4, 2021 are not met. 38 C.F.R. § 4.115a, Diagnostic Code 7541. 2. Entitlement to a TDIU 3. Entitlement to SMC at the "housebound rate" Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper or lower extremities or a single bodily system are considered one, collective, disability. Id. The central inquiry is "whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating, in itself, is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, instead, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The determination of whether a Veteran is capable of substantially gainful employment is not a medical one; rather, this determination is for the adjudicator. 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). However, medical evidence addressing the functional effects of the Veteran's service-connected disabilities on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case at hand, the Veteran has multiple service-connected disabilities that combine to an 90 percent evaluation (so greater than the required 70 percent) from April 9, 2017 to March 4, 2021 and 100 percent from March 4, 2021 onwards, and at least one disability namely, both his diabetic nephropathy and PTSD, are rated as at least 70-percent disabling (so greater than the required 40 percent). Thus, he has sufficient ratings for his service-connected disabilities to satisfy the threshold minimum schedular criteria for a TDIU according to 38 C.F.R. § 4.16(a). The Court has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). The Veteran's award of a total (i.e., 100 percent) schedular rating was assigned based on the combination of all his service-connected disabilities and no single disability is rated as 100 -percent disabling. But in this decision the Board is granting a TDIU, so a de facto total rating. According to 38 U.S.C. § 1114(s)(1), when a Veteran has a service-connected disability rated as totally disabling and additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC (in this instance meaning a type of SMC that he is not receiving). The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. Id. (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Here, as mentioned, the Veteran's service-connected disabilities meet the rating requirements for consideration of a TDIU on a schedular basis under § 4.16(a). Since April 19, 2017, he has had a 90 percent combined rating for these disabilities, and since March 4, 2021, he has had a schedular 100 percent combined rating. He has not, however, been receiving SMC based on the need for aid and attendance (A&A) or on account of being housebound (HB), only instead based on loss of use of a creative organ owing to the erectile dysfunction attributable to his diabetes; thus, consideration of his entitlement to a TDIU is not moot. And, in this regard, the Board finds that a TDIU is warranted and that, because of this grant, he is also entitled to an award of SMC at the HB rate. Specifically, the record reflects that the Veteran's PTSD is the predominant disability that prevents substantially gainful employment. This was concluded on February 2017 VA examination finding this disability caused significant functional impairment. He had worked as a warehouseman from 1974 until retiring in June 2013. On a VA Form 21-4138, Statement in Support of Claim, he explained that he was forced to retire from that job due to his bouts of anger with coworkers. This was confirmed by his immediate supervisor of 23 years on an April 2017 VA Form 21-4192. As such, the Board finds this disability of PTSD significantly impacts his ability to re-enter the workforce and obtain and maintain substantially gainful versus just marginal employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). When additionally considering the Veteran's other service-connected disabilities, including notably his diabetic nephropathy rated as 60-percent disabling prior to March 4, 2021 and as 80-percent disabling since, also his underlying type II diabetes mellitus rated as 20-percent disabling, tinnitus rated as 10-percent disabling, and bilateral hearing loss and diabetic dermopathy each rated as noncompensable, so 0-percent disabling, there is additional service-connected disability independently ratable at 60 percent or more, meaning apart from the 100 percent rating or TDIU. See C.F.R. 4.25. These additional disabilities, at the very least, bring him to the 60 percent independently ratable calculation. Therefore, he additionally meets the criteria set forth in 38 C.F.R. § 3.350(i) for the award of SMC at the HB rate. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.