Citation Nr: 1337864 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-33 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus. 2. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to July 1965, and from April 1969 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of August 2008 of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO) that continued the Veteran's 20 percent ratings for his diabetes and his bilateral peripheral neuropathy of the lower extremities. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is in the Veteran's file. This case was previously before the Board in August 2012. At that time, the Board granted three separate claims and remanded the three claims that remain on appeal. The development ordered has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation based on the loss of use of a creative organ have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has been assigned either a TDIU or a schedular 100 percent rating over the course of the entire appeal period, any consideration or discussion of a TDIU is moot. FINDINGS OF FACT 1. The Veteran's treatment for diabetes requires the use of insulin and a restricted diet, but does not require regulation of activities. 2. Peripheral neuropathy of the left lower extremity results in moderate incomplete paralysis of the sciatic nerve. 3. Peripheral neuropathy of the right lower extremity results in moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.41, 4.119, Diagnostic Code (DC) 7913 (2013). 2. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In his March 2012 hearing, the Veteran waived any error in the timing or the content of the notice he received. The duty to notify is considered satisfied. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, have also been obtained. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in March 2008, May 2010, and November 2012. The Veteran has argued that these examinations should be considered inadequate for rating purposes. In his August 2010 substantive appeal, the Veteran contended that, with respect to the May 2010 examination, his claim file was not available for review and that the examiner did not review records from prior to 1998. He also contended that he was examined for only 35 minutes, and that the fact that he wears an ankle brace was not noted. In a February 2013 letter, the Veteran argued that the VA examiner is "extremely biased" against him. He stated that he has more than moderate paralysis in his legs. A review of each of the examination reports, however, clearly demonstrates that they are thorough and contain sufficient information to rate the Veteran under the applicable Diagnostic Codes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Further, the Board rejects the Veteran's contention that the examiner is biased against him. This examiner's opinions and findings served, in large part, as the basis for the Board's previous decision granting the Veteran a 100 percent schedular rating and special monthly compensation. The Board finds no evidence of bias on the part of the examiner. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Increased Ratings Claims Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. 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. Further, 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 appellant 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 assigned. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating for Diabetes The Veteran's type II diabetes mellitus has been evaluated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. The 20 percent rating assigned contemplates diabetes mellitus requiring insulin and a restricted diet, or requiring the use of an oral hypoglycemic agent and restricted diet. A higher 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. Id. Ratings in excess of 40 percent require regulation of activities in addition to other, more severe manifestations of diabetes. The term "regulation of activities" is defined as an "avoidance of strenuous occupational and recreational activities." Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). In order for a claimant's diabetes to warrant a rating in excess of 20 percent, "it must be shown that a regulation of these activities is medically necessary." Id. At a March 2008 VA heart examination, the Veteran stated that he had a hypoglycemic reaction once a week. He denied suffering from ketoacidosis, and he denied any hospitalizations for hypoglycemia or ketoacidosis. The Veteran stated that he was on a low-sodium diet, and that he had to restrict his activities secondary to his diabetes. The examiner, however, offered no comment on the Veteran's diabetes, other than to say that it was uncontrolled. In a February 2009 letter, the Veteran stated that he was using insulin at a higher dosage than indicated in the rating decision. At a May 2010 VA examination, the Veteran stated that he suffered from hypoglycemia 2-3 times per month. He denied suffering from ketoacidosis, and he denied any hospitalizations for hypoglycemia or ketoacidosis. The Veteran stated that he tries to follow a restricted diet, but added that he had not been prescribed a restriction of activity to prevent hypoglycemia. The Veteran reported taking insulin to treat his diabetes. The examiner noted that the Veteran had type II diabetes with mild functional limitations, but did not state whether the Veteran was required to regulate his activities. At his March 2012 hearing, the Veteran stated that his diabetes had gotten worse, noting that he was required to use a higher dosage of insulin. Most recently, the Veteran underwent a VA examination in November 2012. The examiner noted that the Veteran is prescribed insulin and has more than one injection per day. The examiner reported that the Veteran does not require the regulation of activities as part of the medical management of his diabetes. The examiner stated that there was no need to restrict his activities, and that aerobic, non-weightbearing activity would be beneficial. The Veteran had no episodes of ketoacidosis or hypoglycemia requiring hospitalization in the previous 12 months. The Veteran was not found to suffer from any complication of diabetes other than diabetic neuropathy. In a February 2013 letter, the Veteran stated that he again had to increase his insulin dosage. This evidence shows that the 20 percent rating assigned is appropriate. Such a rating is assigned for diabetes requiring insulin and a restricted diet, and the VA examinations and VA treatment records show that the Veteran controls his diabetes through these methods. Though the Veteran has frequently argued that his increasing use of insulin should support an increased rating, the Diagnostic Code does not delineate between levels of insulin use in assigning ratings. A 40 percent or higher rating would only be warranted with evidence that the Veteran's diabetes required insulin, restricted diet, and regulation of activities. There is no evidence in either the VA examinations or in the Veteran's VA treatment records that the Veteran has been told to regulate his activities on account of his diabetes. Indeed, the examiner from the Veteran's November 2012 VA examination stated that aerobic activity would be beneficial for the Veteran. The only evidence that the Veteran has been told to regulate his activities comes from his response in a March 2008 VA examination. This statement is neither credible nor competent. It is not credible, as in a subsequent VA examination, the Veteran denied being told to regulate his activities. The Veteran is not competent to offer this opinion, because given VA's definition of regulation of activities, such a determination must be made by a medical professional. See Camacho, 21 Vet. App. at 363 (defining regulation of activities as an "avoidance of strenuous occupational and recreational activities," and noting that "it must be shown that a regulation of these activities is medically necessary."). The Veteran does not have the requisite medical training or experience necessary to determine that his diabetes requires regulation of her activities, so his statement is not considered competent. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With regard to extraschedular consideration, the evidence shows that the Veteran's service-connected diabetes requires the use of insulin and a restricted diet; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for diabetes is adequate, and referral for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim for a disability rating in excess of 20 percent for type II diabetes mellitus; there is no doubt to be resolved; and a disability rating in excess of 20 percent is not warranted. Increased Ratings for Peripheral Neuropathy of the Bilateral Lower Extremities The Veteran's neuropathy of the left and right lower extremities has been rated as 20 percent disabling for each extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular muscle atrophy. An 80 percent rating is assigned with complete paralysis of the sciatic nerve. The term "incomplete paralysis" with peripheral nerve disabilities indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. The terms "slight," "moderate," and "severe" under Diagnostic Code 8520 are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. At a March 2008 VA examination, the Veteran stated that he had loss of strength in his legs. He complained of chronic tingling, numbness, and burning of his feet, left worse than right. He complained of nightly flare-ups lasting between 15 and 30 minutes. The Veteran reported using a walker and a cane, but stated that his neuropathy pain of his lower legs did not affect his ability to do his activities of daily living. Upon examination, the Veteran had strength of 5/5 in his lower limbs. He had a decreased pinprick sensation in his lower limbs, and decreased vibration in his ankles downward. The Veteran's feet had no calluses, ulcers, or deformities. He had barely detectable monafilament testing in both distal metatarsal heads, and his pedal pulses were symmetrical, equal, and intact. The examiner diagnosed the Veteran as suffering from mild neuropathy of the lower extremities. A November 2008 VA EMG revealed that there was some evidence of left tarsal tunnel syndrome, but the EMG revealed an otherwise common normal nerve conduction study. A September 2009 VA podiatry note reflects that the Veteran's pedal pulses were palpable, and that his neurological status was intact with 5.07 monafilament wire. A March 2010 VA podiatry note reflects that the Veteran complained of progressively worse pain in his feet. He noted the discomfort more when sitting, resting, or trying to sleep. At a May 2010 VA examination, the Veteran described his left foot neuropathy as slightly worse than his right. He stated that he has chronic tingling, numbness, and burning. He described his pain as worse at night. He reported wearing an ankle brace and using a walker or cane for ambulation. Upon examination, the examiner noted that the Veteran had absent vibration from the ankle down, and he had absent monafilament testing on the bottom of the feet. He had motor strength of 5/5 in the lower limbs. His deep tendon reflexes were +1 at the bilateral ankles and +2 at the bilateral knees. His pedal pulses were symmetrical and equal. The examiner reported that nerve conduction tests performed in January 2010 revealed that peroneal and tibial motor conduction was specifically normal, though there may be some very slight plantar sensory impairment. The examiner diagnosed the Veteran as suffering from diabetic neuropathy of the lower extremities, resulting in mild functional limitations. He noted that the Veteran had subjective complaints of severe neuropathy symptoms without objective findings on the nerve conduction test. There was no evidence of muscle atrophy or fasciculation on examination. At his March 2012 hearing, the Veteran stated that his neuropathy had gotten worse. He stated that his medications had increased, and that he had fallen. At a November 2012 examination, the Veteran complained of moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness in his bilateral lower extremities. Upon examination, the Veteran had full strength in knee extension, ankle plantar flexion, and ankle dorsiflexion. There was no evidence of muscle atrophy. He had normal deep tendon reflexes in his knees and ankles. He had decreased light touch sensation in his lower leg and ankles, and absent light touch sensation in his lower extremities. The examiner noted that the Veteran used a wheelchair, a cane, and a walker. EMG testing revealed mild generalized sensory neuropathy. The examiner diagnosed the Veteran as suffering from moderate incomplete paralysis of the sciatic nerve, and mild, incomplete paralysis of the external popliteal nerve. He noted that these disabilities result in mild functional limitations. This evidence supports the 20 percent rating assigned. Again, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Here, the VA examinations have consistently shown that the Veteran retains full strength in his lower extremities, and that he suffers from only sensory manifestations of his neuropathy. The VA examiners have described his neuropathy as resulting in mild functional limitations, a level reflected by the 20 percent rating assigned. An increased 40 percent rating would only be warranted with evidence of moderately severe incomplete paralysis. Such evidence has not been presented. Instead, the Veteran has maintained full strength in his lower extremities, and there is no evidence of any muscle atrophy in his legs or lower extremities. Absent evidence that the Veteran's bilateral peripheral neuropathy results in more than sensory manifestations, a 40 percent rating is not warranted. With regard to extraschedular ratings, the evidence shows that the Veteran's service-connected bilateral peripheral neuropathy of the lower extremities results in moderate incomplete paralysis with mild functional impacts; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected bilateral peripheral neuropathy of the lower extremities is adequate, and referral is not required. Thun, 22 Vet. App. at 111; 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim for an increased rating for bilateral peripheral neuropathy of the lower extremities; there is no doubt to be resolved; and an increased rating for bilateral peripheral neuropathy of the lower extremities is not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs