Citation Nr: 1803209 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-32 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to restoration of a disability rating of 20 percent for diabetic peripheral neuropathy, left lower extremity, femoral nerve. 2. Entitlement to restoration of a disability rating of 20 percent for diabetic peripheral neuropathy, right lower extremity, femoral nerve. 3. Entitlement to an initial rating greater than 20 percent from October 15, 2015, through April 25, 2016, for diabetic peripheral neuropathy, left lower extremity, femoral nerve. 4. Entitlement to an initial compensable rating from April 26, 2016, for diabetic peripheral neuropathy, left lower extremity, femoral nerve. 5. Entitlement to an initial rating greater than 20 percent from October 15, 2015, through April 25, 2016, for diabetic peripheral neuropathy, right lower extremity, femoral nerve. 6. Entitlement to an initial compensable rating from April 26, 2016, for diabetic peripheral neuropathy, right lower extremity, femoral nerve. 7. Entitlement to an initial rating greater than 20 percent for diabetic peripheral neuropathy, left lower extremity, sciatic nerve. 8. Entitlement to an initial rating greater than 20 percent for diabetic peripheral neuropathy, right lower extremity, sciatic nerve. 9. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from September 1967 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2011, February 2016, and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Huntington, West Virginia. As to the assigned ratings for the right and left femoral nerves, in a June 2016 rating decision the RO reduced the disability ratings from 20 percent to noncompensable (0 percent), both effective April 26, 2016. The Board notes in passing that, with respect to the reductions in the June 2016 rating decision, as the Veteran's overall combined rating remained unchanged there was no requirement to provide advance notice of the reductions. See 38 C.F.R. § 3.105(e) (2017). The Veteran testified at a VA Central Office hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. Therein, the VLJ held open the record to afford the Veteran the opportunity to submit additional evidence in support of his claim. A transcript of the hearing is of record. Since the last adjudication of the claim the Veteran has submitted additional relevant evidence. In October 2016, with the submission of some of the additional evidence, the Veteran's representative noted that as the Veteran's substantive appeals were received after February 2, 2013, the Board no longer is required to obtain a waiver of initial review by the agency of original jurisdiction (AOJ). See § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence.) To the extent that additional evidence has been added to the claims file by the RO as part of several additional claims by the Veteran not currently before the Board, the Board concludes that the above October 2016 statement and other statements from the Veteran and his representative clearly demonstrate their desire that the claims be adjudicated by the Board without remand to the RO for initial consideration of any evidence. As such, the Board finds that final determinations as to the claims on appeal can be made without prejudice to the Veteran. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. In a June 2016 rating decision, the RO reduced the Veteran's ratings for left and right lower extremity peripheral neuropathy involving the femoral nerve from 20 percent to noncompensable, effective April 26, 2016, based on the fact that the original grant of benefits was based on an incomplete VA examination. 2. The separate 20 percent ratings for the Veteran's left and right lower extremity diabetic peripheral neuropathy involving the femoral nerve were based upon incorrect facts. 3. At no point during the appellate time period has the Veteran had a disability of the left femoral nerve due to diabetic peripheral neuropathy. 4. At no point during the appellate time period has the Veteran had a disability of the right femoral nerve due to diabetic peripheral neuropathy. 5. The Veteran's left sciatic nerve disability does not approximate moderately severe incomplete paralysis at any time on appeal. 6. The Veteran's right sciatic nerve disability does not approximate moderately severe incomplete paralysis at any time on appeal. 7. The Veteran is not blind, is not in a nursing home, has not lost the use of both feet, permanently bedridden, and is not in need of regular aid and attendance as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Restoration of a disability rating of 20 percent for left lower extremity peripheral neuropathy involving the femoral nerve is not warranted. The grant was erroneous. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code (DC) 8626 (2017). 2. Restoration of a disability rating of 20 percent for right lower extremity peripheral neuropathy involving the femoral nerve is not warranted. The grant was erroneous. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124a, DC 8626 (2017). 3. From October 15, 2015, through April 25, 2016, the criteria for an initial rating greater than 20 percent for diabetic peripheral neuropathy, left lower extremity, femoral nerve, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8626 (2017). 4. From April 26, 2016, the criteria for a compensable rating for diabetic peripheral neuropathy, left lower extremity, femoral nerve, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8626 (2017). 5. From October 15, 2015, through April 25, 2016, the criteria for an initial rating greater than 20 percent for diabetic peripheral neuropathy, right lower extremity, femoral nerve, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8626 (2017). 6. From April 26, 2016, the criteria for a compensable rating for diabetic peripheral neuropathy, right lower extremity, femoral nerve, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8626 (2017). 7. The criteria for an initial rating greater than 20 percent for diabetic peripheral neuropathy, left lower extremity, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8620 (2017). 8. The criteria for an initial rating greater than 20 percent for diabetic peripheral neuropathy, right lower extremity, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8620 (2017). 9. The criteria for the award of SMC based on the need for regular aid and attendance have not been not met. 38 U.S.C. §§ 1114, 5107 (2012), 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board acknowledges the December 2013 submission from the Veteran's then- representative arguing that because the last aid and attendance examination was approximately 3 years old a new aid and attendance examination was warranted. That said, the representative did not provide any specific basis for the new examination other than the passage of time. Moreover, during his Board hearing the Veteran described his symptoms and problems with activities that were the basis for his claim for entitlement to aid and attendance benefits. As the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted and given that there is other evidence of record documenting the Veteran's symptoms and problems, the Board finds that a remand is not warranted. VAOPGCPREC 11-95. As to the diabetic peripheral neuropathy claims, during the August 2016 Board hearing the Veteran's representative argued that the April 2016 VA examination report addendum was unclear in that it documented only right and left sciatic nerve dysfunction due to diabetic peripheral neuropathy, but failed to address femoral nerve involvement. As such, reduction of the separate 20 percent ratings for right and left femoral nerve dysfunction was not warranted. As will be discussed in greater detail below, the original January 2016 VA examination report diagnosed diabetic peripheral neuropathy, but did not document the specific nerve or nerves involved and, indeed, noted normal bilateral sciatic and femoral nerves. The February 2016 rating decision granted service connection and separate ratings for sciatic and femoral nerve dysfunction based on the January 2016 VA examination; however, in an April 2016 clarification request to the examiner the RO noted that the findings in the January 2016 VA examination report were internally inconsistent. The April 2016 VA examination report addendum clarified the diagnosis of diabetic peripheral neuropathy as involving mild, incomplete paralysis of the right and left sciatic nerve. As the January 2016 VA examination report specifically noted that the right and left femoral nerves were normal, the April 2016 addendum request from the RO requested clarification of the inconsistent findings of diabetic peripheral neuropathy and normal sciatic and femoral nerves, and the April 2016 addendum findings of bilateral sciatic nerve involvement, from context it is clear that the April 2016 addendum specifically was limiting the diabetic peripheral neuropathy to the right and left sciatic nerves and that at no point in time was the Veteran diagnosed with right or left femoral nerve impairment due to diabetic peripheral neuropathy. As such, the Board finds the January 2016 VA examination report and April 2016 addendum, read in concert, to be clear and sufficient on which to base a decision in this case. Neither the Veteran nor his representative otherwise has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Rating Reductions for Diabetic Peripheral Neuropathy involving the Right and Left Femoral Nerves and Increased Ratings for Diabetic Peripheral Neuropathy involving the Right and Left Femoral and Sciatic Nerves Applicable Law for Rating Reduction In rating reductions, when VA contemplates reducing an evaluation for a veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), "[w]here the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons." Id. In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." Id. The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing," 38 C.F.R. § 3.105(i), and thereafter, a "final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires." See 38 C.F.R. §§ 3.105(e); 3.500(r) (2017). Applicable Law for Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. DC 8520 provides ratings for paralysis of the sciatic nerve. DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. DC 8620 provides a rating for neuritis of the sciatic nerve. DC 8720 provides a rating for neuralgia of the sciatic nerve. DC 8526 provides ratings for paralysis of the anterior crural (femoral) nerve. DC 8526 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated 40 percent disabling. DC 8626 provides a rating for neuritis of the femoral nerve. DC 8726 provides a rating for neuralgia of the femoral nerve. The term "incomplete paralysis" with these and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Relevant Factual and Procedural Background In a February 2016 rating decision, the RO granted entitlement to service connection for right and left lower extremity diabetic peripheral neuropathy and awarded separate 20 percent ratings for each extremity for impairment of the femoral and sciatic nerves. All 4 ratings had an effective date of October 15, 2015, the date of the Veteran's claim for benefits. In a subsequent June 2016 rating decision, however, the RO reduced both of the 20 percent ratings for the right and left lower extremity femoral nerve impairment due to diabetic peripheral neuropathy to noncompensable (0 percent), effective April 26, 2016. The right and left lower extremity femoral nerve impairment due to diabetic peripheral neuropathy were, and are, rated under DC 8626. The separate 20 percent ratings for right and left sciatic nerve impairment due to diabetic peripheral neuropathy were, and are, rated under DC 8620. As noted above, a February 2016 rating decision assigned separate 20 percent ratings for right and left diabetic peripheral neuropathy involving the femoral and sciatic nerves (4 ratings in all), effective October 15, 2016. The basis for the ratings was stated to be, "Your VA Examination indicated that you have absence of sensation of the bilateral lower extremities and decreased reflexes. The overall evidence of record supports a compensable evaluation for your disability." The VA examination referenced in the February 2016 rating decision took place in January 2016. In the examination report, the examiner noted review of the claims file. The Veteran was diagnosed with diabetic peripheral neuropathy from 2015, based on his reports of burning and sharp pain in the feet beginning in 2015. His doctor had told him the symptoms were representative of neuropathy. The Veteran was right-hand dominant. The Veteran described intermittent severe pain in the right and left lower extremities, as well as severe paresthesias and/or dysesthesias in the same extremities. On examination, muscle strength was normal in both extremities. Reflexes were decreased in the bilateral upper and lower extremities. Light touch, position, and cold sensation were normal in all extremities, but there was absent vibration sensation in the right and left lower extremity. There was no evidence of muscle atrophy. There were no trophic changes to the skin. The examiner noted that the Veteran had a lower extremity diabetic peripheral neuropathy, but went on to note that right and left sciatic and femoral nerves were normal. EMG studies were not performed. The Veteran indicated that the peripheral neuropathy would affect his ability to work, in that he could see himself driving a bus and getting an attack of neuropathy and, "When it comes, you have to do something - take your shoes off, stomp your feet, right then." The Veteran appealed the assigned multiple 20 percent ratings, requesting 40 percent ratings for each foot and stating that he could not walk more than a short distance without having to stop due to pain. A May 2016 Statement of the Case (SOC) denied increased ratings for any of the 4 ratings related to lower extremity diabetic peripheral neuropathy. The Veteran submitted a substantive appeal for each of these ratings. Thereafter, in a June 2016 rating decision, the RO found that the February 2016 rating decision that had assigned the separate 20 percent ratings for right and left femoral nerve impairment due to diabetic peripheral neuropathy had been based on an incomplete January 2016 VA examination report. Since that time, "New evidence and VA peripheral nerve examination dated June 26, 2016, [sic] shows you do not have diabetic peripheral neuropathy of the femoral nerve. Therefore, entitlement to benefits is reduced from 20 percent to 0 percent (noncompensable evaluation), effective April 26, 2016, date of VA examination and the date the facts show you do not have neuropathy of the femoral nerve." In that regard, in April 2016 the RO requested an addendum to the January 2016 VA examination report based on the examiner's "diagnosis of diabetic peripheral neuropathy of the lower extremities and reports that the Veteran's sciatic and femoral nerves are normal. Please identify the nerve(s) that are causing [the] Veteran's neurological symptoms of the lower extremities." An April 26, 2016, VA examination report addendum in response indicated: "The Veteran does have diabetic peripheral neuropathy of the lower extremities. Correction: Sciatic nerve has mild incomplete paralysis right and left." In subsequent adjudications, the RO interpreted the claims as involving both the propriety of the reduction of the Veteran's ratings for the right and left femoral nerves, as well as increased rating claims for the bilateral femoral and sciatic nerves. Such claims were certified to the Board and discussed during the Veteran's Board hearing. In his August 2016 Board hearing, the Veteran testified that his wife had to help him put on pants, tie shoes, and don other clothing. She also helped the Veteran get into and out of the bathtub because he was unstable. He walked with a right knee brace and a cane to prevent falls. The cane was used due to leg length discrepancy, according to the Veteran. The Veteran did not cook because he was afraid of having a bout of neuropathy, gout, or problems with his arthritis. The Veteran needed help with drying off his back after bathing due to problems with his left shoulder mobility. On questioning, the Veteran indicated his belief that he would be able to take a shower without assistance, but not a bath. At times, the Veteran needed assistance getting to and from the bathroom due to his knee giving way. The Veteran believed that he needed someone to assist with the needs of everyday living because of the severity of his service-connected disabilities. As to the neuropathy, the Veteran described a burning and itching sensation in the bottom of his feet. He experienced the sensation for 3 to 5 minutes when it occurred and the incidents could occur multiple times per day or not at all in a day. The symptoms were worse in cold weather. In addition, there was numbness in the right leg. The Veteran believed the neuropathy was more than moderate severity because his treating doctors had told him the condition was severe. As discussed above, the Veteran's representative argued that the April 2016 VA examination report addendum opinion only confirmed that the lower extremity neuropathy involved the bilateral sciatic nerve and not that it did not involve the bilateral femoral nerves. In August 2016, the Veteran reported that his exercise tolerance was limited to less than 1 block of walking due to general weakness, leg discomfort, and hip pain. He used a cane. An October 2016 neurology consult included a clinical assessment of mild neuropathy, probably diabetic. Testing showed absent reflexes in the knee and ankles, as well as from the toes down. Sensation was intact and there was normal muscle bulk, tone, strength, and coordination. Stability was normal, but the Veteran's gait was limited by orthopedic issues and pain. The Veteran reported burning and itching pain in his feet that were symmetric. On occasion, it was hard to lift his feet or legs. Subsequent October 2016 EMG testing showed slowing at the right peroneal and tibial nerves and no potential at the right sural sensory nerve. The findings were compatible with axonal sensorimotor neuropathy due to diabetes. Reduction Analysis Most decisions of the Court address the situation where there has been improvement in a service connected disability. Here, the reduction is not based upon improvement. Rather, the reduction was because the original decision was erroneous. The Board concludes that the above evidence reflects that an error was made in the original assignment of the Veteran's 20 percent disability ratings for right and left femoral nerve impairment due to diabetic peripheral neuropathy and that he does not have either right or left femoral nerve disability. The Veteran has not provided any specific argument as to why his right and/or left femoral nerve impairment warrants the previously assigned 20 percent ratings and the April 2016 examination report clarification clearly demonstrates that the Veteran does not meet the criteria for a 20 percent rating or, indeed, for a diagnosis of right or left femoral nerve disability. In summary, the Board finds that the reduction of the ratings from 20 percent to 0 percent (noncompensable), effective April 26, 2016, was proper. Rating Analysis For the same reasons as discussed in the reduction analysis section above, the Board finds that under DC 8626 an initial rating greater than 20 percent prior to April 26, 2016, or a compensable rating from that date, is not warranted at any point for either the right or left lower extremity. As noted above, the January 2016 VA examination report did not diagnose right or left femoral nerve dysfunction due to diabetic peripheral neuropathy and the February 2016 rating decision misinterpreted the report in granting separate 20 percent ratings under DC 8626. The April 2016 VA examination report addendum clarified that the sole nerves affected by the diabetic peripheral neuropathy was the right and left sciatic nerves. There is no other medical evidence of a femoral nerve disability during the appellate time period, including the October 2016 EMG testing results documented above and discussed in greater detail below. As such, a rating greater than 20 percent under DC 8626 prior to April 26, 2016, or a compensable rating from that date, is not warranted at any point for either the right or left lower extremity. As to the Veteran's right and left sciatic nerve impairment under DC 8620, the Board concludes that a rating greater than 20 percent cannot be awarded under DC 8620 for any period on appeal for either extremity. A higher 40 percent rating would require moderately severe incomplete paralysis of the sciatic nerve. The evidence demonstrates that the Veteran has normal bilateral lower extremity muscle strength and no muscle atrophy of either extremity. Reflexes were diminished in each extremity and absent vibration sensation bilaterally. The Veteran has described his main symptoms as being burning and itching sensations in the soles of his feet. The April 2016 examination report addendum considered the evidence of record and found the Veteran's disability to be mild, incomplete paralysis of the right and left sciatic nerves. The Board also finds it potentially significant that the October 2016 EMG testing did not document evidence of sciatic nerve impairment in the right lower extremity. As such, a higher rating than 20 percent for right and left lower extremities under DC 8620 is not warranted for any period on appeal. Finally, the Board notes that the October 2016 EMG tests showed slowing at the right peroneal and tibial nerves. However, since such nerves are branches of the sciatic nerve, separate evaluations are not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to SMC Aid and Attendance Benefits The Board initially notes that the Veteran is in receipt of SMC at the housebound rate pursuant to 38 U.S.C. §1114(s) for the entire appellate time period, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. The Veteran contends that he is eligible for SMC at a higher rate based on his claimed need for aid and attendance. SMC as provided by 38 U.S.C. § 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) (2017). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (noting that at least one factor listed in § 3.352(a) must be present for a grant of special monthly pension based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). The Veteran underwent a VA aid and attendance examination in January 2011. The examiner noted review of the claims file. The examiner noted that the Veteran was no permanently bedridden or currently hospitalized. He was able to travel beyond his current domicile. His normal daily activities included taking medication when he got up in the morning, took a shower independently, would walk around the neighborhood to get some exercise, and on weekends he would visit his girlfriend who did everything for the Veteran. Imbalance affected his ability to ambulate more often that once a week. The Veteran discussed how he had fallen outside of his home 3 times that month when his legs gave out on him while using his cane. The Veteran had problems opening medication bottles and reaching for objects because of pain in the left shoulder. He ate out because he had difficulty preparing his own food. Problems with the hands affected his ability to open and hold objects. The Veteran used a cane and was able to walk independently for up to a few hundred yards. The Veteran had no restrictions on his ability to leave the home. On examination, there was mild or moderate impairment of the right and left upper extremities. With respect to the lower extremities, there was limitation of joint motion and muscle weakness, as well as lack of coordination in the left lower extremity. Weight bearing, propulsion, and balance were normal. The Veteran reported that he could walk about 1 block without stopping. A February 2011 VA treatment record indicated that the Veteran had traveled from West Virginia to Boston to visit his mother and that the airline had taken his medication from his baggage. A June 2015 VA treatment record indicated that the Veteran was able to perform self-care and activities of daily living independently. A January 2016 VA scars examination documented painful scars to the back of the shoulder and left hip. The Veteran had difficulty using his left arm above his head in the same way that he could his right arm, including with lifting and reaching. The scars were not both painful and unstable. The nonlinear left shoulder scar was 5.5 by 6.5 centimeters and the linear left lower extremity scar was 11 centimeters long. A January 2016 VA left shoulder examination report also noted difficulty using the left arm above his head. The Veteran was right-hand dominant. There were flare-ups where the Veteran experienced increased pain lasting about 1 hour. Functional loss was due to difficulty using his left arm above his head and difficulty reaching for objects. On examination of the left shoulder, flexion was to 130 degrees, abduction to 120 degrees, external rotation to 50 degrees, and internal rotation to 90 degrees. Muscle strength was normal and there was no evidence of muscle atrophy. There was no shoulder instability. In August 2016, the Veteran reported that his exercise tolerance was limited to less than 1 block of walking due to general weakness, leg discomfort, and hip pain. He used a cane. In his August 2016 Board hearing, the Veteran testified that his wife had to help him put on pants, tied shoes, and other clothes. She also helped the Veteran get into and out of the bathtub because he was unstable. He walked with a right knee brace and a cane to prevent falls. The cane was used due to leg length discrepancy, according to the Veteran. The Veteran did not cook because he was afraid of having a bout of neuropathy, gout, or problems with his arthritis. The Veteran needed help with drying off his back after bathing due to problems with his left shoulder mobility. On questioning, the Veteran indicated his belief that he would be able to take a shower without assistance, but not a bath. At times, the Veteran needed assistance getting to and from the bathroom due to his knee giving way. The Veteran believed that he needed someone to assist with the needs of everyday living because of the severity of his service-connected disabilities. As to the neuropathy, the Veteran described a burning and itching sensation in the bottom of his feet. He experienced the sensation for 3 to 5 minutes when it occurred and the incidents could occur multiple times per day or not at all in a day. The symptoms were worse in cold weather. In addition, there was numbness in the right leg. The Veteran believed the neuropathy was more than moderate severity because his treating doctors had told him the condition was severe. An October 2016 neurology consult included a clinical assessment of mild neuropathy, probably diabetic. Testing showed absent reflexes in the knee and ankles, as well as from the toes down. Sensation was intact and there was normal muscle bulk, tone, strength, and coordination. Stability was normal, but the Veteran's gait was limited by orthopedic issues and pain. The Veteran reported burning and itching pain in his feet that were symmetric. On occasion, it was hard to lift his feet or legs. Subsequent October 19, 2016, EMG testing showed slowing at the right peroneal and tibial nerves and no potential at the right sural sensory nerve. The findings were compatible with axonal sensorimotor neuropathy due to diabetes. In February 2017, the Veteran was hospitalized overnight after passing out and falling while practicing with the church choir. The Veteran did report that he had changed and/or stopped taking certain medication prior to the incident. In March 2017, the Veteran sought treatment for long toenails and stated that he was unable to care for his feet due to back pain. There also was reported numbness. Following examination, the Veteran was provided with a nail file and instructed on proper foot care. An April 2017 VA kidney examination documented complaints of muscle weakness, easy fatigability, light-headedness, shortness of breath when climbing stairs, and shortness of breath on mild exertion. The problems affected the Veteran's ability to work in that, "No way I could drive [a] truck because I couldn't stay awake in long distance travel." VA treatment records otherwise document the Veteran's repeated denials of falls, other than the fall in February 2017 when he passed out. As an initial matter, the Board notes that the evidence of record does not show that the Veteran's service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. The Board recognizes that his bilateral diabetic peripheral neuropathy result in burning and tingling in the soles of his feet. In addition, the Veteran reports instability due to a leg length discrepancy that requires the use of a knee brace and a cane. That said, testing shows normal muscle strength in the lower extremities and no muscle atrophy. The Veteran is able to walk for a period of distance before having to stop due to pain. Thus, he clearly has not lost the use of both feet. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C. § 1114(l) by showing his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a) set forth above. In this regard, the medical evidence does not demonstrate that the Veteran requires regular aid and attendance due to his service-connected disabilities. Again, the Veteran remains mobile despite his diabetic peripheral neuropathy, left hip, and scar disabilities. The Veteran has reported problems with various joints, including his back, that prevent him from standing long enough to cook for himself or to tie his shoes or trim his nails. The joint disabilities (other than the left hip disability) have not been service-connected and there is no indication that they are related to the Veteran's service. The Veteran has a 70 percent rating for PTSD, but there is no indication or contention that the mental health disability results in the need for aid and attendance. The Veteran has expressed concern that he may soon need dialysis for his service-connected kidney disease, but the kidney disease has not resulted in the need for aid and attendance as defined above. The Veteran has trouble washing and drying part of his back due to limited motion as a result of his service-connected left shoulder disability, but otherwise is not restricted in his ability to bathe. The Veteran has reported needing assistance getting to and from the bathroom due to problems with stability, but there is no indication that he is unable to use the bathroom independently once in the bathroom and the Veteran's stability problems have not been linked to a service-connected disability. The claims file does not otherwise include any medical record suggesting a more severe level of impairment with respect to the performance of activities of daily living or otherwise suggesting that the Veteran is bedridden or so helpless that he requires regular aid and attendance. On further review of the record, the Board concludes that the evidence does not show that the Veteran is permanently bedridden, or so helpless as to be in need of regular aid and attendance due to service-connected disability. Indeed, as indicated above, the Veteran can perform his activities of daily living, albeit with difficulty. In sum, the competent evidence of record does not indicate that the Veteran's service-connected disabilities prevent him from performing any activities of daily living. The Veteran has not provided or identified any evidence to the contrary. See 38 U.S.C. § 5107(a). Based on the foregoing, the Board finds that the claim for SMC based on aid and attendance must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Restoration of a disability rating of 20 percent for diabetic peripheral neuropathy, left lower extremity, femoral nerve, is denied. Restoration of a disability rating of 20 percent for diabetic peripheral neuropathy, right lower extremity, femoral nerve, is denied. Entitlement to an initial rating greater than 20 percent from October 15, 2015, through April 25, 2016, for diabetic peripheral neuropathy, left lower extremity, femoral nerve, is denied. Entitlement to an initial compensable rating from April 26, 2016, for diabetic peripheral neuropathy, left lower extremity, femoral nerve, is denied. Entitlement to an initial rating greater than 20 percent from October 15, 2015, through April 25, 2016, for diabetic peripheral neuropathy, right lower extremity, femoral nerve, is denied. Entitlement to an initial compensable rating from April 26, 2016, for diabetic peripheral neuropathy, right lower extremity, femoral nerve, is denied. Entitlement to an initial rating greater than 20 percent for diabetic peripheral neuropathy, left lower extremity, sciatic nerve, is denied. Entitlement to an initial rating greater than 20 percent for diabetic peripheral neuropathy, right lower extremity, sciatic nerve, is denied. Entitlement to SMC based on the need for aid and attendance is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs