Citation Nr: 21042805 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-42 684A DATE: July 13, 2021 ORDER An initial rating higher than 30 percent for diabetic nephropathy with hypertension is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's diabetic nephropathy with hypertension has not approximated constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension with diastolic pressure predominantly of 120 or more. 2. The Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 30 percent for diabetic nephropathy with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, 4.115a, 4.115b, Diagnostic Codes (DCs) 7101, 7541. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to April 1971. This appeal stems from a July 2013 rating decision. In July 2019, the Board remanded the appeal to provide the Veteran with new VA examinations to determine the current severity of the claimed diabetic nephropathy with hypertension. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating in excess of 30 percent for diabetic nephropathy with hypertension. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's diabetic nephropathy with hypertension is rated under 38 C.F.R. § 4.115b, DC 7541. This diagnostic code directs the rater to evaluate this disability as renal dysfunction, which incorporates diabetic nephropathy. See 38 C.F.R. § 4.115a. Under this code section, a noncompensable disability rating is assigned for albumin and casts with history of acute nephritis; or, hypertension non-compensable under DC 7101. A 30 percent disability rating is assigned 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 DC 7101. A 60 percent disability rating is assigned for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under DC 7101. An 80 percent disability rating is assigned for 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. The maximum 100 percent disability rating is assigned where regular dialysis is required or the renal dysfunction precludes 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. Under DC 7101 for hypertension, a 10 percent rating is warranted 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. Lastly, a 60 percent rating is assigned for diastolic pressure predominantly 130 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. Facts Following the January 2012 claim, the Veteran was afforded a June 2015 VA examination in which he was diagnosed with diabetic nephropathy. The examiner indicated the Veteran has renal dysfunction. He reported the Veteran does not require regular dialysis, has no signs and symptoms due to his renal dysfunction, and does not have hypertension or heart disease due to renal dysfunction. The examiner noted test results which showed the Veteran had BUN at 15 mg%, creatinine at 1.2 mg%, and an eGFR of 44 ml/min. He found no functional impact due to the Veteran's kidney condition. As noted above, the December 2015 rating decision increased the Veteran's initial rating for diabetic nephropathy with hypertension to 30 percent. Thereafter, the Veteran submitted a December 2015 substantive appeal in which he contends a higher rating is warranted. He stated he has high creatinine levels and constant high blood pressure. He reported his diabetic nephropathy with hypertension has led to syncope and awakening at night to urinate. An April 2016 medical record was submitted in which the physician indicated the Veteran has syncope of unclear etiology and he should not drive or operate mechanical machinery. The Veteran receives treatment for his kidney disorder with hypertension through the VA Medical Center (VAMC). Test results through the VAMC showed in October 2012, the Veteran's BUN was 18.3 and his creatinine was 1.3; in December 2015, his BUN was 12.1 and his creatinine was 1.3; in March 2016, his BUN was 14.1 and his creatinine was 1.3; and in January 2019, his BUN was 13 and his creatinine was 1.2. Additionally, with regard to his diagnosed hypertension, blood pressure (BP) readings taken throughout the appeal period do not suggest an increased rating is warranted under DCs 7541 and 7101. Moreover, an October 2012 record indicated BP of 130/83; a June 2013 record indicated BP of 127/85; an August 2014 record indicated BP of 112/73; an April 2015 record indicated BP of 143/82; a November 2015 record indicated BP of 112/72; a March 2016 record indicated BP of 152/96; a September 2016 record indicated BP of 121/77; a March 2017 record indicated BP of 118/77; a March 2018 record indicated BP of 136/73; a September 2018 record indicated BP of 137/78; and an October 2019 record indicated BP of 112/75. The claim came before the Board in July 2019 and was remanded for further development, including a VA examination to determine the severity of the Veteran's diabetic nephropathy with hypertension. The Veteran was afforded a December 2019 VA examination in which he reported having "stable blood work over the years." He stated he did not require continuous medication for his kidney condition. The examiner indicated the Veteran does not have renal dysfunction and there are no other physical findings, signs or symptoms related to the disorder. The examiner further stated his kidney disorder does not impact his ability to work. With regard to hypertension, the examiner opined the Veteran requires medication for his high blood pressure and that such medication keeps his blood pressure stable. BP readings from the examination were noted at 124/78, 126/76 and 124/78. She indicated there is no objective evidence in the record which supports that the Veteran's diabetic nephropathy or hypertension have worsened or that either condition affects his ability to work. She stated these disorders do not preclude substantially gainful employment consistent with the Veteran's education and occupational experience and both conditions are considered stable. Analysis Based on the foregoing, the Board finds that an initial rating in excess of 30 percent is not warranted for the Veteran's diabetic nephropathy with hypertension. His kidney condition has not approximated constant albuminuria with some edema or definite decrease in kidney function. Further, his hypertension has not resulted in diastolic pressure predominantly 120 or more. The medical evidence during the appeal period shows the Veteran's BUN and creatinine levels have been less than 40 percent and 4 mg, respectively. The highest BUN level found was 18.3 mg% and the highest creatinine level noted was 1.3 mg%. The Board notes the medical evidence does not show he has generalized poor health due to lethargy, weakness, anorexia, weight loss, or limitation of exertion, and regular dialysis is not required. As noted, the most recent December 2019 VA examiner opined the Veteran's kidney disorder and hypertension are considered stable. Moreover, while blood pressure readings were taken throughout the appeal period, such readings did not result in diastolic pressure predominantly 120 or more. As such, the Board determines that an initial rating in excess of 30 percent for diabetic nephropathy with hypertension is not warranted. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, an initial rating in excess of 30 percent for diabetic nephropathy with hypertension is denied. 2. TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Facts The Veteran contends that his service-connected disabilities prevent all substantially gainful employment. In a December 2015 TDIU application, he reported he last worked and became too disabled to work in October 2012. He indicated he worked for over twenty years selling cars for a car dealership. He reported that he has a high school education with no additional education or training. The Veteran was afforded a July 2013 VA examination for his diabetes mellitus in which the examiner indicated the disorder limits his prolonged exertion due to generalized fatigue. The examiner stated the Veteran should not work around dangerous equipment or hazardous environments due to decreased awareness of injury to his hands and feet. With regard to the Veteran's upper and lower extremity diabetic peripheral neuropathy, the examiner reported he is limited in prolonged use of his hands for gripping and pinching activities. She indicated he is also limited in use of his hands for controls or hand tools and he should be cautious in hazardous environments. A March 2014 VA addendum opinion from the prior examiner indicated the Veteran's diabetes and diabetic peripheral neuropathy severely limit his ability to work in strenuous physical occupations or in hazardous environments. However, the examiner opined these disorders do not affect his ability to work in sedentary occupations. She further stated his service-connected diabetic nephropathy with hypertension has no impact on his ability to work. In a June 2015 VA examination, the examiner indicated the Veteran's kidney disorder and diabetes mellitus have no functional impact on his ability to work. With regard to the Veteran's peripheral neuropathy, the examiner noted the Veteran owns a small used car dealership and the disorders cause 2 to 4 weeks per year of time lost from work. He stated the Veteran's pain in his hands and feet limit his mobility and endurance and cause significant aggravation and frustration. An April 2016 medical record was submitted in which a physician who specializes in cardiology indicated the Veteran has syncope of unclear etiology and he should not drive or operate mechanical machinery. The Veteran was afforded a March 2017 VA examination for his peripheral neuropathy in which the examiner stated the disorders limit the Veteran's prolonged sitting and standing. With regard to the Veteran's diabetes mellitus, the March 2017 examiner reported his glucose level limits his exertion. The examiner indicated the Veteran's erectile dysfunction has no functional impact on his ability to work. The Veteran's representative submitted a September 2017 statement in which he reported his service-connected disabilities prevented him from working full-time and that his hours were reduced to 16 hours per week. He further stated his earnings were reduced to approximately $11,000 per year and this is not considered gainful employment. Following the Board's July 2019 remand, the Veteran was afforded a December 2019 VA examination. The examiner indicated the Veteran is capable of performing heavy work, including exerting 50 to 100 pounds of force occasionally, 25 to 50 pounds of force frequently and/or 10 to 20 pounds of force constantly to move objects. She stated with regard to the Veteran's diabetic nephropathy with hypertension, the disorder does not impact his ability to work. The examiner indicated there is no objective evidence in the record which supports that the Veteran's kidney condition or hypertension have worsened or that either condition affects his ability to work. She stated these disorders do not preclude substantially gainful employment consistent with the Veteran's education and occupational experience and both conditions are considered stable. The Veteran's representative submitted a June 2021 brief in support which indicated a TDIU is supported. He stated the Veteran worked previously as a car dealer and his hours were dropped from full-time to about 16 hours per week. Moreover, he indicated in approximately 4 years, the Veteran went from working full-time to barely part-time due to the worsening of his service-connected disabilities. Analysis The Board finds the Veteran's service-connected disabilities have not prevented all substantially gainful employment. The Veteran's service-connected disabilities have caused some occupational impairment, including from his kidney disorder, diabetes and diabetic peripheral neuropathy of the upper and lower extremities. However, the Board determines he is not prevented from all substantially gainful employment based on his education and work experience, and due solely to the service-connected disabilities. After careful review, the Board finds the medical evidence of record, including the VA examinations, do not support that the service-connected conditions prevent all employment. The Veteran reported in his December 2015 TDIU application that he worked selling cars at a dealership for over 20 years and the Board acknowledges the impact his disorders have on his ability to work. The medical evidence indicated the Veteran's diabetes limits prolonged exertion due to generalized fatigue. With regard to his peripheral neuropathy, symptoms noted include limited prolonged use of the hands for gripping and pinching activities, limited use of hand controls or hand tools, and pain which limits his mobility. Further, the most recent post-remand December 2019 VA examination report indicated the Veteran is capable of performing "heavy work," including exerting 50 to 100 pounds of force occasionally. The examiner further reported the Veteran's kidney condition and hypertension have not worsened, are considered stable and do not affect his ability to work. As such, the medical evidence does not support that the Veteran's service-connected conditions prevent all substantially gainful employment. The Board takes note of the April 2016 medical record which indicated the Veteran has "syncope of unclear reason" and he should not drive or operate mechanical machinery. The inability to operate mechanical machinery could impair his ability to work, as he has been employed for over twenty years selling cars. However, the Board notes the April 2016 medical opinion was authored by a cardiologist and the Veteran is not service connected for a heart disability. Further, the examiner stated the Veteran has syncope or loss of consciousness with an unclear etiology. The Board notes when evaluating entitlement to a TDIU, consideration may not be given to the Veteran's age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. As such, the April 2016 medical opinion does not support that the Veteran's service-connected disabilities prevent all substantially gainful employment. The Board is sympathetic to the impact caused by the Veteran's service-connected disabilities, both professionally and personally. The Board notes the June 2021 representative's statement which indicated the Veteran's work hours have dropped from full-time to approximately 16 hours per week, with significantly less earnings. However, the problems experienced by the Veteran have been compensated by the schedular ratings for the disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while the Veteran's disabilities caused some economic impairment, his assigned disability ratings contemplate his level of occupational impairment. (Continued on the next page) Accordingly, the Board finds that the Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, a TDIU is not warranted. A. Yaffe Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.