Citation Nr: 18141600 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 16-18 795 DATE: October 11, 2018 ORDER 1. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is denied. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity is denied. 3. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied. 4. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. 5. Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the left upper extremity is not manifested by moderate incomplete paralysis of the lower radicular group. 2. The Veteran’s peripheral neuropathy of the right upper extremity is not manifested by moderate incomplete paralysis of the lower radicular group. 3. The Veteran’s peripheral neuropathy of the left lower extremity is not manifested by moderately severe incomplete paralysis of the sciatic nerve. 4. The Veteran’s peripheral neuropathy of the right lower extremity is not manifested by moderately severe incomplete paralysis of the sciatic nerve. 5. The Veteran’s diabetes mellitus requires an oral hypoglycemic agent and restricted diet but no regulation of activities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8512 (2017). 2. The criteria for entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8512 (2017). 3. The criteria for entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to January 1968. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The U.S. Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. 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.   1. – 4. Peripheral neuropathy of the upper and lower extremities The Veteran currently receives a 20 percent rating for the upper and lower bilateral extremities. The Veteran is right handed, and thus his right hand is his major hand. (a) Upper Extremities The Veteran’s upper bilateral extremities are rated under Diagnostic Code 8512, which provides for paralysis of the lower radicular group. Pursuant to Diagnostic Code 8512, a 20 percent rating is warranted for mild incomplete paralysis for both the major and minor upper extremities; a 30 percent disability rating is warranted for moderate incomplete paralysis for the minor hand; a 40 percent disability rating is warranted for moderate incomplete paralysis of the major hand; a 40 percent rating is warranted for severe incomplete paralysis of the minor hand; a 50 percent rating is warranted for severe incomplete paralysis of the major hand; a 60 percent rating is warranted for complete paralysis of all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers of the minor hand; and a 70 percent rating is warranted for complete paralysis of all intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers of the major hand. The term “incomplete paralysis” as used therein indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, such ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.71a, Diagnostic Code 8512. At a VA examination in April 2015, the Veteran reported numbness and pain in his upper extremities, including burning in his hands and fingers. The Veteran reported that it was difficult for him to use his hands for fine work due to the numbness, and he also reported that he had difficulty driving. Upon examination, the April 2015 VA examiner noted that the Veteran exhibited moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his upper extremities. Strength testing and deep tendon reflexes of the upper extremities was noted to be within normal limits. The Veteran did not have any muscle atrophy, trophic changes, or any other physical findings. The examiner concluded that the Veteran had mild incomplete paralysis in the upper extremities. The evidence of record does not indicate right or left upper extremity peripheral neuropathy that is moderate in nature as is required for a 40 percent rating. Based upon the evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran’s claims of entitlement to a disability rating in excess of 20 percent for right or left upper extremity peripheral neuropathy. (b) Lower Extremities The Veteran’s bilateral lower extremities are rated under Diagnostic Code 8520, which provides for paralysis of the sciatic nerve. Pursuant to Diagnostic Code 8520, a 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent disability rating is warranted for moderate incomplete paralysis of the sciatic nerve; a 40 percent disability rating is warranted for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent disability rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy; and a maximum schedular 80 percent disability rating is warranted for complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.71a, Diagnostic Code 8520. The term “incomplete paralysis” as used therein indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, such ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.71a, Diagnostic Code 8520. At an April 2015 VA examination, the Veteran reported numbness and burning in his feet and toes, indicating that he often woke up at night, and had difficulty using the foot pedals while driving. Upon examination, it was noted that the Veteran had decreased light touch and vibration sensation in his lower extremities, though strength testing and deep tendon reflexes were noted to be within normal limits. The examiner noted that the Veteran had moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his bilateral lower extremities. There was no muscle atrophy or trophic changes noted, and the examiner concluded the Veteran had mild incomplete paralysis in his lower extremities. The evidence of record does not indicate right or left lower extremity peripheral neuropathy that is moderately severe as is required for a 40 percent rating. Based upon the evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a disability rating in excess of 20 percent for right or left lower extremity peripheral neuropathy. 5. Diabetes mellitus Diabetes mellitus is evaluated under the endocrine system, Diagnostic Code 7913. Under the formula, a 10 percent rating is warranted when diabetes mellitus is managed by a restricted diet only. A 20 percent rating is warranted where there is diabetes mellitus requiring one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted where there is diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 60 percent rating is warranted where there is diabetes mellitus requiring 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 evaluated separately. Id. A 100 percent rating is warranted where there is diabetes mellitus requiring more than one daily injection of insulin, 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. Id. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation; noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 and note 1. The Veteran was provided a VA examination in March 2015. It was noted that the Veteran was diagnosed with diabetes mellitus in 2004, and he was treated with an oral hypoglycemic. The examiner noted that the Veteran’s diabetes mellitus required no regulation of activities. The examiner further noted that the Veteran sees a provider for ketoacidosis and hypoglycemia two times per month, the examiner wrote that the Veteran had no hospitalizations or progressive unintentional weight loss or loss of strength. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction. The reasons follow. In accordance with Diagnostic Code 7913, note 1, the Board will first consider the Veteran’s complications of diabetes. In this regard, the Veteran has been awarded separate, compensable disability ratings for his complications of peripheral neuropathy of the bilateral upper and lower extremities and bilateral diabetic retinopathy with macular edema and cataracts. The only remaining complication of the Veteran’s diabetes mellitus is erectile dysfunction. The Board finds that a separate compensable rating for erectile dysfunction is not warranted because a compensable rating for erectile dysfunction under 38 C.F.R. § 4.114b, Diagnostic Code 7522 requires that there also be a deformity of the penis. In the March 2015 VA examination report, which included an examination for the Veteran’s penis, the examiner wrote that the Veteran’s penis was normal. Thus, the evidence shows that the Veteran does not have a deformity of the penis to warrant a compensable rating. As for the Veteran’s diabetes mellitus symptoms, as noted above, the Veteran’s disability does not require the use of insulin or regulation of activities. As such, the Board finds the probative evidence of record shows that the Veteran has not been required to regulate his activities as defined by the rating criteria. As the Veteran’s disability must manifest with insulin use, a restricted diet, and a regulation of activities to warrant a 40 percent rating, a rating in excess of 20 percent is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel