Citation Nr: 0900118 Decision Date: 01/02/09 Archive Date: 01/14/09 DOCKET NO. 05-20 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 40 percent for diabetes mellitus, type II, with mild peripheral neuropathy and hypertensive vascular disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from September 1967 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was remanded for further development in December 2007. Such has been completed and this matter is returned to the Board for further consideration. FINDINGS OF FACT 1. Prior to February 12, 2007, the veteran's diabetes mellitus is managed by restricted diet and insulin without episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 2. Prior to February 12, 2007, the veteran's complications from diabetes mellitus consist of peripheral neuropathy affecting the right upper extremity which is no more than a mild incomplete paralysis. 3. Prior to February 12, 2007, the veteran's complications from diabetes mellitus consist of peripheral neuropathy affecting the left upper extremity which is no more than a mild incomplete paralysis. 4. Prior to February 12, 2007, the veteran's complications from diabetes mellitus consist of peripheral neuropathy affecting the right lower extremity which is no more than a mild incomplete paralysis. 5. Prior to February 12, 2007, the veteran's complications from diabetes mellitus consist of peripheral neuropathy affecting the left lower extremity which is no more than a mild incomplete paralysis. 6. As of February 12, 2007, the veteran's diabetes mellitus more closely resembles symptomatology requiring more than one daily insulin injection, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring weekly visits to a diabetic care provider, plus complications that would be compensable if separately evaluated. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for diabetes mellitus have not been met prior to February 12, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.119, Diagnostic Code (DC) 7913 (2008). 2. The criteria for a disability rating of 10 percent, but no more, for peripheral neuropathy of the right upper extremity prior to February 12, 2007, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2008). 3. The criteria for a disability rating of 10 percent, but no more, for peripheral neuropathy of the left upper extremity prior to February 12, 2007, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8515 (2008). 4. The criteria for a disability rating of 10 percent, but no more, for peripheral neuropathy of the right lower extremity prior to February 12, 2007, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8515 (2008). 5. The criteria for a disability rating of 10 percent, but no more, for peripheral neuropathy of the left lower extremity prior to February 12, 2007, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2008). 6. As of February 12, 2007 the criteria for a 100 percent rating for diabetes mellitus has been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.119, Diagnostic Code 7913 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that for claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was recently amended to eliminate the fourth element requirement that VA request that a claimant submit any evidence in his or her possession that might pertain to the claim. See 73 Fed. Reg. 23,353 (Apr. 30, 2008). Consequently, the presence and/or absence of notice of this element in this case is of no consequence because it is no longer required by law. In the present case, the veteran's claim on appeal was received in April 2003. The RO adjudicated it in April 2004, with notice sent the same month. In this case, the VA's duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter(s) sent to the appellant on January 2008. Additional notice was sent in June 2008. The veteran was provided initial notice of the provisions of the duty to assist as pertaining to entitlement to an increased rating, which included notice of the requirements to prevail on these types of claims and of his and VA's respective duties. The duty to assist letter notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment, or to provide a properly executed release so that VA could request the records for her. The veteran was also asked to advise VA if there were any other information or evidence she considered relevant so that VA could help by getting that evidence. Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of this claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued on May 2008 after the notice was first provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. The Board notes that the veteran was sent a letter detailing the criteria according to Vazquez-Flores, supra, in June 2008. This letter in addition to discussing effective dates and the general criteria for a disability rating, also provided the specific criteria for diabetes mellitus, although this letter left out the provision that separate compensable manifestations can be rated separately if the diabetes is less than 100 percent disabling. Thus while the letters sent to the veteran in January 2008 and June 2008 do not meet the requirements of Vazquez-Flores and are not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. The veteran was provided detailed information regarding the criteria for an increased rating for the diabetes and its complications by the following. First, the statement of the case sent in June 2005, which discussed at length the level of disability needed for a higher rating for diabetes including the provision allowing separate evaluations for compensable manifestations if the diabetes is less than 100 percent disabling. The supplemental statements of the case from May 2008 likewise discussed the criteria and symptoms needed to satisfy the criteria in effect for diabetes which were discussed at length, and included the criteria for evaluating neurological manifestations. The veteran also discussed his diabetes symptoms to include neurological manifestations and insulin dosages in his notice of disagreement VA Form 9 received in July 2004 and June 2005 respectively. Furthermore his representative in briefs filed in May 2007 and October 2008 elaborated further on his symptoms as they relate to the applicable criteria. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. The veteran, who has representation, had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service treatment records were previously obtained and associated with the claims folder. Furthermore, VA, Social Security and private medical records were obtained and associated with the claims folder. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA examinations conducted in May 2008 provided current assessments of the veteran's condition based not only on examination of the veteran, but also on review of the records. In summary, the duties imposed by 38 U.S.C.A. §§ 5103 and 5103A have been considered and satisfied. Through notices of the RO, the claimant has been notified and made aware of the evidence needed to substantiate the claim for higher disability ratings, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims decided on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2008). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2008) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2008) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2008) provides that, 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. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2008). Diabetes mellitus is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. The veteran is currently rated at a 40 percent rating which is the criteria for diabetes mellitus requiring insulin and restricted diet, and regulation of activities. Diabetes mellitus that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, warrants a rating of 60 percent. Id. Where diabetes mellitus requires more than one daily insulin injection, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength, or complications that would be compensable if separately evaluated, a 100 percent rating is warranted. Id. Note (1) evaluate compensable complications of diabetes mellitus separately unless they are used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2) when diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. The veteran served in Vietnam during the Vietnam War. The evidence reflects that he had diabetes and hypertension dating at least as far back as the early 1990's, with treatment records from December 1990 and January 1991 for lumbar spine complaints and meningitis also significant for a history of diabetes with very high blood sugars over 400 documented in these records, as well as a history of very recently diagnosed hypertensions. He was administered insulin until his blood sugars stabilized to the 100 to 150 range. He also had symptoms of numbness affecting the upper and lower extremities in the late 1980's and early 1990's, with diagnoses that included carpal tunnel syndrome (CTS) bilaterally, which was treated surgically in the right hand in 1988 and the left hand in 1990. He also had lower extremity symptoms of numbness which at the time was attributed to his lumbar spine pathology. Evidence of peripheral neuropathy was confirmed in an April 2001 nerve conduction study (NCS) which revealed findings consistent with a mild peripheral neuropathy affecting all extremities. This was noted in the VA examination reports also from April 2001 which addressed the findings of neuropathy and noted that he has multiple factors that could be causing or contributing to his symptoms of numbness in all extremities including CTS, spinal meningitis, Agent Orange exposure, cervical disc disease and hypertensive vascular disease. Service connection for diabetes mellitus was granted by the RO in a July 2001 decision. He filed his current claim for increase in April 2003. Among the evidence received in conjunction with this claim was as follows. VA treatment records from 2002 primarily addressed other medical problems besides his diabetes related complaints, but did include primary care notes showing repeated follow-up care for diabetes mellitus, type 2 and hypertension. The diabetes was described as without complications and not stated as uncontrolled in the encounter notes from January 2002, April 2002, July 2002, December 2002 and October 2002. The hypertension was described as essential, unspecified hypertension. The notes also reflect that he was seen in July 2002 by optometry, and in addition to having been diagnosed with an unspecified disorder of refraction and accommodation and presbyopia, he was also assessed with diabetes with ophthalmic manifestations, type II, adult onset or unspecified type, not stated as uncontrolled. In December 2002 he was followed up for diabetes and hypertension as well as multiple other unrelated complaints. He was noted to be doing well with blood sugars controlled from the 80's to the low 110's. Following physical examination which showed a blood pressure of 152/78 he was assessed with hypertension, elevated today. It was noted that he was unsure whether he took his blood pressure medications since he was fasting. Plans included further home monitoring of blood pressure. An April 2003 follow up for diabetes and back pain revealed his main complaints were pain and swelling, with his blood sugars ranging from 111 to 190 at home. His hypertension assessment indicated that his elevated blood pressure was usually controlled. An October 2003 clinic note for a past medical history of hypertension and diabetes, as well as chronic back pain revealed an elevated uric acid on last visit with probable gout to the left knee. He was noted to have gained almost 20 pounds since April, and this was probably due to his taking a medication for an unrelated medical problem. He was assessed with weight gain due to Seroquel, diabetes mellitus controlled and hypertension well controlled at this time. The medication treatment notes from 2002 to 2003 do not indicate that he was taking insulin, but do show he took oral medications to control his diabetes. The report of a November 2003 VA examination of the veteran's neuropathy included a review of records showing treatment by multiple physicians. The purpose of the examination was to ascertain whether his peripheral neuropathy was related to his diabetes. He had a history of diabetes dating to 1989, but reported intermittent numbness of his hands since 1968, and had multiple factors including low back pain with sciatica with numbness extending to both feet and CTS of both hands, treated with multiple modalities including surgery. On physical examination his cranial nerves were intact. Strength was 4+/5 bilateral grip strength and thumb adduction, and his distal lower extremities were 5-/5. He had decreased pinprick to the upper calf and mid forearm and positive Tinel's sign bilaterally. He had decreased vibratory sensation except at MTP joints and propriorception was intact. His reflexes were 2+ throughout except for 1+ at the Achilles with downgoing toes. He walked cautiously with a steady gait and a left leg limp due to low back pain. He reported significant disability related to his symptoms. He could not stand for long periods of time and had difficulty even turning pages of a book due to bilateral hand weakness. He also reported difficulties with activities of daily living such as shaving due to persistent numbness. In regards to the CTS he was noted to have treated with surgery, splints, physical therapy and over the counter medications which helped minimally. In regards to peripheral neuropathy, he treated with Capsaicin cream only. His electromyelogram (EMG) and NCS from 2001 was noted to show a mild peripheral neuropathy. There was no evidence of CTS at that time. He was diagnosed with sensory polyneuropathy related to diabetes and a possible CTS which cannot be confirmed until further EMG and NCS testing was done. NCS test results from February 2004 revealed unspecified idiopathic peripheral neuropathy. Also outpatient encounter notes reflect that in February 2004 through May 2004 he continued to be followed for diabetes mellitus and unspecified essential hypertension, but with no significant findings documented. In July 2004 he was seen by ophthalmology with diagnoses that included diabetes mellitus II or unspecified with ophthalmologic manifestations, background diabetic retinopathy, retinal edema and unspecified cataract. He was fitted with spectacles. The medication records throughout 2004 and 2005 reflect that the veteran took a single one milliliter syringe of insulin per day from May 2004 to November 2004. His dosage was reported as 10 units in November 2004. A June 2005 VA eye treatment record again referred to a history of a background diabetic retinopathy with cotton spot macular edema (CSME) in the left eye. He underwent a focal laser in July 2004 and had not been seen since that time. He stated that he had no change in his vision. After a physical examination which was noted to show a visual acuity correctable to 20/20 in each eye, he was diagnosed with history of background diabetic retinopathy both eyes with CSME in the left eye, status post focal laser. He appeared to be doing well at this time. A December 2005 follow up for diabetes and chronic back pain revealed his blood sugar to be 72 which the veteran stated was too low for him. He was assessed with diabetes mellitus, improving A1c of 7.1. His hypertension was also improving as he was noted to have recently been taking half his prescribed dose of Felodipine as he had been running out of this medication. In August 2005 an active medication list included insulin Novolin 30/70 15 units to be injected twice a day, in addition to various other medications for diabetes, high blood pressure and other conditions. The note also indicated that his dosage would be increased to 20 units. A December 2005 active outpatient list noted the increased dosage of 20 units twice a day. A January 2006 examination for diabetic retinopathy revealed no specific complaints except that his glasses were not as sharp as they used to be. He reported his sugars have been fairly well controlled and his hemoglobin A1c was 7.0 in December. His past ocular history was notable for BDR with a history of CSME in the left eye, status post focal laser in 2004. His ocular examination revealed both eyes were correctable to 20/20. He was assessed with background diabetic retinopathy both eyes, no CSME, no PDR. His hemoglobin A1c has been doing well. He was counseled on blood sugar and blood pressure control. He was to return for a dilated exam in one year or sooner if problems arose. He had refractive error and mildly elevated intraocular pressure. All his pressures in the past had been within normal limits and he had very healthy appearing optic nerves. There was no family history of glaucoma. An April 2006 follow up for diabetes revealed blood sugars in the 118 range. In January 2007 a followup for diabetes for which he was on insulin, and hypertension was noted to show no significant findings. Also in January 2007 he had a recheck of his eyes and it was about a year since his last eye exam. He had a past ocular history notable for background diabetic retinopathy, refractive error and ocular hypertension with healthy appearing nerves and no family history. His interval history reflected that he checked his blood sugars once or twice a week and they ran between 80 and 130. He said he noticed a slight change in vision but otherwise was doing well. His vision was correctable to 20/20. Following examination he was assessed with refractive error, diabetes mellitus with background diabetic retinopathy but with no clinically significant macular edema nor proliferative changes. He had diabetes with a history of clinically significant macular edema status post focal laser and no edema seen today and non visually significant cataracts. He was to be seen again in 9-12 months. Active outpatient medications in January 2007 included insulin Novolin 30/70 30 units in the morning and 20 units in the evening, in addition to various other medications for diabetes, high blood pressure and other conditions. On February 12, 2007 a medication management note revealed the veteran to show compliance with his medications. Active outpatient medications included insulin Novolin 30/70 30 units in the morning and 20 units in the evening, in addition to various other medications for diabetes, high blood pressure and other conditions. He denied symptoms of hyperglycemia such as polyuria, polydipsia and polyphagia. However he mentioned shaking in the afternoon possibly due to hypoglycemia. Otherwise he denied dizziness or weakness. His last eye appointment was in January 2007. He checked his feet regularly and reported no sores or cuts. His diet was reported as standard breakfast fare, lunch were either none or fast food and his dinner was baked or fried chicken and 2 vegetables. He had fruit on the days that he skipped lunch. His home blood glucose readings were inconclusive due to a lack of information regarding the times readings were taking and whether they were before or after meals. However his blood glucose readings were not at goal. There were questionable symptoms of hypoglycemia. Labs taken on this visit showed an increase in serum glucose levels. His A1c levels from January 2007 also did not meet goals of less than 7 percent. Since all reported blood glucoses and last A1c were elevated he was advised to increase his insulin dosage. He was to continue with Metformin and Glyburide. He was counseled on hypoglycemia and instructed to eat hard candy or drink orange juice should problems with this arise. A March 2007 medication management revealed the veteran to have missed a dose of insulin once in the past week due to flu like symptoms. He reported having only 3 small episodes of hypoglycemia which were associated with shaking. He did not experience any dizziness or weakness. His symptoms resolved after he ate a mint. He denied any polyuria, polydipsia or polyphagia. He denied any nausea or vomiting, diarrhea and other problems due to metformin. He checked his feet regularly and denied any sores, lesions or cuts. His serum taken at this visit was 78. The assessment continued to be diabetes. His blood glucose of 78 was at goal, but he forgot his home readings. His readings per recollection were noted to be inconclusive due to a lack of information as to when they were taken. An April 2007 medication management note revealed the veteran to presently be taking 70/30 insulin 34 units in the morning and 24 units in the evening due to a misunderstanding. He reported no missed doses. He had 1-2 episodes of shakiness per week in the midday to early evening, usually resolved with a candy or soda. This happened on days he skipped lunch. He denied gastrointestinal discomfort or other symptoms due to Metformin. He denied polyuria, polydipsia, or polyphagia. He denied lightheadedness, nervousness or sweating. He again reported compliance with foot care and reported no problems with his feet. Again his diet was reported and was unchanged from January 2007. Multiple blood sugar readings throughout a day were reported. The assessment was diabetes, uncontrolled. His A1c level on this day was 8.1 percent which was down from January 2007 reading of 8.4 percent. The readings provided by the veteran indicated that his blood sugar was well controlled before breakfast but he had multiple pre-dinner readings in the 150's to 160's. All other labs were normal. He was advised to change his insulin dosage and eat candy when his sugar is too low and to never skip meals. A May 2007 diabetic foot examination revealed normal sensory and pulse. The only abnormal findings were nail pathologies. Also in May 2007 he was followed up for back complaints with right leg radiation of tingling and numbness, but no bowel or bladder incontinence. He reported pain in his knees, ankles and hands. His blood sugars were controlled. In August 2007, again he complained of low back pain with radiation down the right leg with numbness and tingling for which Gabapentin was prescribed. Again his blood sugars were well controlled. An MRI was noted to show degenerative spine changes. In October 2007 he continued with the similar back complaints, and also was noted to have changed his insulin to 55 units in the morning and 25 units in the evening. In January 2008 he had a screen for congestive heart failure and was instructed to check his weight every morning and call medical provider if it fluctuated more than 2 pounds per day or 3-5 pounds per week. In January 2008 his blood sugars were doing well and they were in the 70's. The Gabapentin was said to have helped his right leg symptoms of tingling and numbness. A February 2008 urology consult revealed treatment with papaverine with good results. His chief complaint was erectile dysfunction. He was able to have erections in the morning but was unable to sustain them. He had treated with Levitra and Viagra about 20 times in the past and a vacuum device was unsatisfactory. His past medical history of hypertension and diabetes was noted. Physical examination revealed normal meatus with uncircumsized phallus. No plaques were noted and testes were descended bilaterally. He had normal epididymis. He denied peripheral neuropathy or lower urinary tract symptoms. He denied dysuria or hematuria. He could empty his bladder without difficulty. He was assessed with erectile dysfunction, who failed level 1 therapy and he was interested in injections. Plans included injection trial. In a March 2008 mental hygiene note he reported complaints with Paxil interfering with his ability to ejaculate, as well as other factors such as diabetes and hypertension also possibly interfering with this ability. Also in March 2008 he was seen for an eye follow-up with an assessment of refractive error, stable, and diabetes without retinopathy. However a history of prior CSME post focal laser was noted. The report of a May 2008 comprehensive VA examination to address the severity of the veteran's diabetes mellitus diagnosed in 1987, and associated symptoms included review of the claims file and examination of the veteran. The examination revealed current symptoms of urinary frequency of 1 to 2 times an hour. His medical history was detailed. He had no episodes of hypoglycemia or ketoacidosis. He did have a hospitalization for hyperglycemia reported in 1990. His self monitored blood sugar ranged from 89 to 296. He reported his activities were limited by back and knee pain, but were not restricted for the purposes of preventing hypoglycemia. He reported intermittent urinary dysfunction not requiring pad use, and no bowel dysfunction. His current treatment for his diabetes included a special diet and medications of metformin, glyburide, and insulin injections of 70/30 55 units in the morning and 25 units in the evening. He was followed up every 3 months for diabetic care. He denied a cardiovascular history, but did report hypertension diagnosed in 1987. He took medications of HCTZ, Amlodipine and Lisinopril for his hypertension, but had no symptoms from hypertension. He denied any side effects from treatment. He denied any stroke or peripheral vascular disease. He did have peripheral neuropathy which was diagnosed in the 1990's and resulted in moderate numbness in the hands and feet. Treatment was with Gabpentin. Elsewhere in the examination, he was described as having paresthesias affecting both hands due to diabetic neuropathy. He denied any nephropathy. He did report erectile dysfunction since 2005, also due to diabetic neuropathy. He reported having treated this with Papaverine injections and Levitra which did not help. Vaginal pentetration was never or almost never possible. He had no history of visual symptoms, skin symptoms, gastrointestinal symptoms or neurovascular symptoms related to his diabetes. No other symptoms or diabetic complications were reported. The course of the veteran's diabetes since onset was progressively worse, with treatment including both insulin and oral medications, with insulin more than once a day as reported above. There were no side effects from treatment. Physical examination revealed a series of 3 blood pressure readings to be 140/84, 136/82 and 140/80. His pulse was 74, temperature was 98 degrees. Cardiovascular examination revealed no significant abnormalities. His skin examination was absent for diabetic skin abnormalities. On examination of the bilateral upper and lower extremities, they all had normal temperature, color and pulses, with no evidence of trophic changes or ulcers. Neurological examination revealed normal coordination, orientation, speech and memory, with no Romberg's sign. For the left and right side, he had no motor loss or sensory loss and cranial nerve was normal. Also he had 2+ reflexes throughout bilaterally. Babinski was negative. Eye examination revealed an abnormal reaction of the pupils to light and accommodation, with the rest of the eye examination for the left and right showing no abnormalities. Laboratory testing revealed on serum examination that he had a high glucose level of 157 and a high alkaline phosphatase of 132. The rest of the laboratory readings fell within the normal range. His urine was significant for 1+ protein, and for a urobilirubin of <2.0 with no other significant findings. Chest X-ray revealed no significant change from one taken in May 2007 with no acute lung disease or pleural abnormalities and stable cardiomediastinal silhouette. The diagnosis was Type 2 diabetes. The examiner noted that the veteran was presently not employed due to the plant he worked at having closed. As far as complications, they were summarized as neurologic disease of peripheral neuropathy of the bilateral upper and lower extremities, with the onset of this complication was in relation to the onset of diabetes. Also noted was erectile dysfunction as a complication of diabetes which was also in relation to the onset of diabetes. As far as a possible diabetes related condition of hypertension, the examiner determined that this was not a complication of diabetes. The reason for this was that he had stable renal disease. The examiner also opined that hypertension was not worsened or increased by diabetes. The examiner also noted that there was no visual impairment, kidney disease or amputation resulting from the diabetes. There were no effects from the diabetes on the veteran's usual daily activities. A special VA examination for veins and arteries done in conjunction with the May 2008 diabetes examination was negative for any clinical findings, complaints or history of any vascular problems. Further testing was not indicated. A peripheral nerves examination revealed that the veteran was hospitalized in 1989 and 1991 for bilateral carpal tunnel release. There was no history of nerve trauma or neoplasm. His specific syndrome was paresthesias in the hands and feet. Motor examination revealed 5/5 muscle strength in the upper and lower extremities bilaterally. Sensory function report revealed normal findings on all upper and lower extremities on examination of vibration, pain, light touch and position sense. Again reflexes were 2+ throughout all upper and lower extremities. There was no muscle atrophy, abnormal muscle tone or bulk, nor tremors, tics or abnormal movements. His gait and balance were normal and there was no evidence of any joint function adversely affected by his nerve disorder. A nerve conduction tests did reveal findings affecting both the upper and lower extremities which were consistent with mild peripheral neuropathy. The diagnosis was bilateral peripheral neuropathy upper and lower extremity. The effects of this on his usual daily activity, chores and grooming were mild. A special hypertension examination revealed no evidence of any other cardiovascular problems or disease on history or clinical examination other than the hypertension itself. Nor was there any evidence of hypertensive related complications such as hypertensive renal disease, epistaxis, stroke/TIA, headaches or other hypertensive related diseases. The cardiovascular examination itself was unremarkable for any significant cardiovascular findings. His blood pressure was 140/84, 136/82 and 140/80. The diagnosis was essential hypertension. There was no effect on his usual activities of daily living from the hypertension. A special genitourinary examination in conjunction with the diabetes examination revealed no history of trauma or neoplasm nor of general systemic symptoms due to genitourinary disease. There were urinary symptoms of urgency, difficulty starting stream, dribbling and straining to urinate. There was no weak or intermittent stream, no hematuria, urine retention or urethral discharge. He had a daytime voiding interval of less than an hour. Nighttime voiding was 3 times per night. He had no renal colic. He did have episodes of urine leakage and incontinence. However wearing of absorbent materials was not required. He did have a history of recurrent urinary tract infections. However there was none in the past 12 months. Nor was there a history of hospitalizations, or drainage procedures required in the past 12 months. He did not require intensive management. He also had no history of urinary retention, urinary tract stones, renal failure, acute nephritis, hydronephrosis or cardiovascular problems. He did have erectile dysfunction from diabetic neuropathy with penile injections not effective in allowing intercourse. Physical examination revealed normal bladder, anal, rectal walls, perineal sensation, testicles and prostate. There was no mention of any penile findings. All peripheral pulses and bulbocavernosus reflexes were normal. The diagnosis was erectile dysfunction. There was no impact of this condition on his normal daily activities. Based on a review of the foregoing, the Board finds that prior to February 12, 2007, the preponderance of the evidence is against a higher rating than 40 percent disabling for the veteran's diabetes under Diagnostic Code 7913, but that separate compensable ratings are warranted for diabetic complications, specifically mild peripheral neuropathy affecting the bilateral upper and lower extremities, and for hypertension. In regards to the diabetic symptoms other than the complications, the evidence prior to February 12, 2007 does not reflect the diabetes to have symptoms that more closely resemble the criteria for a 60 percent rating. While the diabetes was shown to require insulin and restricted diet, it is not shown to have required regulation of activities other than general monitoring of his condition, nor is there shown to be episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Generally his diabetes was reported to be under good control in the records prior to February 12, 2007, with no problems resulting from hypoglycemia or other such episodes shown. While he did have an increase in insulin dosage to 2 dosages per day shown in August 2005 with each dose increased from 15 to 20 units per day, again there was no evidence of the manifestations which would warrant a 60 percent rating. The medical records continued to be absent for findings of complications such as ketacidosis, hyperglycemia or hypoglycemia which would warrant a higher rating, and he is not shown to require visits more than once a month for diabetic monitoring. In sum, the evidence prior to February 12, 2007 does not meet the criteria for a 60 percent rating under Diagnostic Code 7913. While there are other complications, specifically mild peripheral neuropathy affecting the bilateral upper and lower extremities, and for hypertension, the Board notes that under Diagnostic Code 7913 a 60 percent rating contemplates these symptoms as noncompensable. However Note 1 directs compensable complications to be evaluated separately. The compensable manifestations in this instance are shown to be the peripheral neuropathy which affects both arms and legs, as well as the hypertension. While there are other neurologic problems shown to affect the upper and lower extremities besides from the service- connected diabetes, including CTS and lumbar spine pathology, if the symptomatology from the service-connected diabetic neuropathy cannot be differentiated from any nonservice- connected neurological manifestations, the Court has held that, in such cases, VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Thus the Board will attribute all neurological findings in the arms and legs to the peripheral neuropathy. As per the peripheral neuropathy, the evidence reflects that the veteran's hands and feet are specifically affected, as per the findings from the November 2003 VA examination, and records and examination reports subsequent to this. Upon review of the symptomatology demonstrated by the evidence of record, the Board finds that evaluation of the disability, is most appropriately rated under Code 8515. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of Code used should be upheld if supported by explanation and evidence). For either the major (dominant) or minor (non-dominant) extremity, a disability rating of 10 percent is warranted for mild incomplete paralysis. A 20 percent disability rating is warranted for moderate incomplete paralysis of the minor extremity. A 30 percent disability rating is warranted for moderate incomplete paralysis of the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8515. In this case, the Board finds that the evidence reflects that a 10 percent rating is warranted for a mild incomplete paralysis for each hand. The EMG/NCS studies confirmed the presence of a mild peripheral neuropathy in both upper extremities and the findings form the November 2003 VA examination did show some decreased grip strength of 4+/5, and some decreased vibratory sensation but no manifestations such as atrophy, sensory loss beyond some decreased vibratory sensation or other symptoms that would suggest a moderate incomplete paralysis in either hand. Thus the evidence reflects that a 10 percent rating per hand is warranted for the left and right hands. As far as the peripheral neuropathy of the lower extremities, the Board finds that this should be rated under the provisions of 38 C.F.R. Part 4, Diagnostic Code 8520 as analogous to impairment of the sciatic nerve. Under Diagnostic Code 8520, pertaining to paralysis of the sciatic nerve, mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.121a, Diagnostic Code 8520 (2008). Again the Board finds that the evidence supports a 10 percent rating per leg for the peripheral neuropathy affecting the lower extremities under Diagnostic Code 8520. The findings from the November 2003 VA neurological examination showed some decreased pinprick bilaterally in both legs. However he generally had 2+ reflexes aside from a 1+ at the Achilles, and no evidence of more than mild pathology. Thus the evidence reflects mild neuropathy affecting both legs, for which separate 10 percent ratings are to be assigned. In reference to the veteran's hypertension which the RO has associated with the diabetes, this is generally shown to be well controlled with medications. Pursuant to 38 C.F.R. § 1.104, Diagnostic Code 7101 (2008), for hypertensive vascular disease, a 10 percent rating is warranted when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. In order for a 20 percent to be warranted the veteran's diastolic pressure would have to be predominantly 110 or more, or his systolic pressure is predominantly 200 or more. Such is not shown in the evidence detailed above. As far as other complications prior to February 12, 2007, while the evidence does reflect some diabetic eye manifestations, these are not shown to result in a compensable visual impairment according to this evidence, which repeatedly showed the veteran to have correctable vision to 20/20 in both eyes, and no other significant findings as far as visual impairment. Thus there is no indication that a separate compensable rating or ratings for eye manifestations is warranted under 38 C.F.R. § 4.84a or any other potentially applicable criteria for eye disorders. Thus with the separate compensable manifestations of 10 percent each per lower extremities and 10 percent each for upper extremities for the peripheral neuropathy, and for a 10 percent rating for the associated hypertension, the Board notes that prior to February 12, 2007, the veteran's combined evaluation for the diabetes added with the separate ratings for the compensable complications is 60 percent disabling. See38 C.F.R. § 4.25(2008). As of February 12, 2007 with application of the benefit of the doubt and with consideration of 38 C.F.R. § 4.7, a 100 percent rating is warranted for the veteran's diabetes mellitus. As of this date his symptoms now more closely resemble the criteria for a 100 percent rating for diabetes under Diagnostic Code 7913. He is shown to take insulin more than once per day, with his dosages gradually increasing. He continues to require a restricted diet and while his activities were not clearly restricted for diabetic reasons, the medication management note from February 12, 2007 reflects symptoms of suspected hypoglycemia manifested by shaking. He continued to have episodes of hypoglycemia on a regular basis according to the records subsequent to this medication management note, with instructions to treat it by ingesting candy or juice. In March 2007 his diabetes was described as uncontrolled. Thus while the hypoglycemic episodes have not actually required hospitalization, he is shown to have regular episodes of hypoglycemia, said to be about once or twice a week, and self treated as per instructions by medical personnel. He also continued with the separate compensable manifestations as discussed above, and in fact was now also having additional genitourinary manifestations including urinary frequency of 3 times per night and voiding intervals of less than an hour, which if separately evaluated would warrant a separate 40 percent rating under 38 C.F.R. § 4.115b for voiding dysfunctions. Additionally, he is also shown to have erectile dysfunction, although this would be noncompensable under 38 C.F.R. § 4.115b Diagnostic Code 7522 as it is not coupled with an identifiable deformity. Thus with considerations of his frequent insulin dosage, continued restrictions in diet, episodes of hypoglycemia documented by medical evidence. Thus the Board finds that as of February 12, 2007, the veteran's diabetes symptoms warrant a 100 percent rating. As this rating contemplates consideration of compensable complications, as of this date he is no longer entitled to separate compensable ratings for his separate manifestations. To allow for such would constitute pyramiding. See 38 C.F.R. § 4.14 (2008). ORDER Entitlement to a rating in excess of 40 percent disabling for diabetes mellitus prior to February 12, 2007 is denied. Prior to February 12, 2007, a separate 10 percent rating for diabetic neuropathy of the right upper extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. Prior to February 12, 2007, a separate 10 percent rating for diabetic neuropathy of the left upper extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. Prior to February 12, 2007, a separate 10 percent rating for diabetic neuropathy of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. Prior to February 12, 2007, a separate 10 percent rating for diabetic neuropathy of the left lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. As of February 12, 2007, a 100 percent disability rating is granted for diabetes mellitus, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs