Citation Nr: 18132216
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-38 945A
DATE:	September 6, 2018
ORDER
An increased rating for diabetes mellitus type II (diabetes) currently rated as 20 percent disabling is denied.
An increased rating for diabetic nephropathy (nephropathy) to 80 percent, but no higher, is granted. 
FINDINGS OF FACT
1. The Veteran’s diabetes requires insulin and restricted diet but not regulation of activities.
2. The Veteran’s nephropathy was manifested by persistent edema with BUN between 40 to 80 mg%.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an increased rating for diabetes currently rated as 20 percent disabling have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, DC 7913.
2. The criteria for entitlement to an increased rating of 80 percent, but no higher, for diabetic nephropathy have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, DC 7541.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  
Diabetes
The Veteran contends his diabetes is worse than his 20 percent rating indicates.
The Veteran has had many examinations for his diabetes.
In a March 2012 examination, the examiner noted the Veteran required insulin injections more than once per day but the Veteran did not require regulation of activities.  The examiner reported the Veteran saw a provider for diabetes less than twice per month with no hospitalizations or unintentional loss of weight or strength.
In a May 2013 examination, the examiner noted the Veteran required insulin more than once per day and sought care from his provider less than twice per month but had not had any hospitalizations.  The examiner noted the Veteran did not require regulation of activities and did not have any loss of strength or weight.
An April 2014 examiner also noted the Veteran saw his doctor for his diabetes less than twice per month but had no hospitalizations.
An October 2016 examiner noted the Veteran’s diagnosis of diabetes and noted the Veteran required insulin injections more than once per day, required a restricted diet, and was prescribed oral hypoglycemic agents but that the Veteran did not required regulation of activities.   The examiner noted the Veteran saw his provider less than twice per month but had no hospitalizations.  The examiner reported the Veteran has not had unintentional weight loss and loss of strength.  
No examiner, and none of the Veteran’s medical records show he requires regulation of activities.  The Board acknowledges the Veteran’s statements that he believes his diabetes is worse than his rating provides.  The Board also acknowledges the Veteran believes his activities are regulated because he is unable to exert himself.   However, while the Veteran is competent to report his symptoms, he is not competent to opine on matters requiring medical knowledge, such as determining the extent and severity of his diabetes.  The medical evidence does not support a higher rating.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board grants more probative weight to the medical evidence of record than the Veteran’s lay statements.
While the Veteran’s diabetes may, in fact, bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings.  If his disabilities did not cause him problems, there would be no basis for compensable ratings, or the increased ratings, the only question is the degree. 

Nephropathy
The Veteran contends his nephropathy is worse than his 60 percent rating indicates.  The Veteran’s nephropathy has been noted in several examinations.  (See March 2012, May 2013 examinations.)
In a May 2013 examination, the examiner noted the Veteran was not taking continuous medication for his nephropathy but that the Veteran did have renal dysfunction.  The examiner reported the Veteran did not require regular dialysis, and had no symptoms due to renal dysfunction.  In April 2013, the examiner observed the Veteran’s BUN was 43 and creatinine was 1.74.  However, the examiner did not report the Veteran had persistent edema and albuminuria.  
In an October 2016 examination the examiner noted the Veteran had renal dysfunction that did not require regular dialysis. The examiner found the Veteran did not have renal tubular disorder or colic with infection, calculi, or kidney transplant or removal.  The examiner reported the Veteran’s BUN and creatinine levels were normal.  
However, throughout the Veteran’s medical records, edema is noted.  (See May 2013, June 2016, January 2018 medical records.)  The Veteran’s BUN level was noted to be 45 in a March 2013 treatment record.  Because the Veteran has edema and has had BUN readings between 40 and 80 mg%, the Board finds an 80 percent rating, but no higher, is warranted.  
A higher 100 percent rating is not warranted because the evidence does not show the Veteran requires regular dialysis, has a BUN level greater than 80 mg% or creatinine more than 8 mg%, or markedly decreased function of the kidney or other organ systems.
Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating.  However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  
The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Veteran has not explicitly raised the issue and the issue is not raised by the record.  As noted above, the Board has reviewed this issue in great detail. 
Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine.  Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply.  See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990).

 
JOHN J. CROWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Snoparsky, Associate Counsel 

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