Citation Nr: 18142109 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 11-33 336 DATE: October 16, 2018 ORDER Entitlement to a rating in excess of 60 percent for service-connected nephropathy prior to March 28, 2018, is denied. Entitlement to a rating in excess of 80 percent for service-connected nephropathy from March 28, 2018, is denied. Entitlement to ratings in excess of 20 percent for service-connected diabetic neuropathy of the upper extremities is denied. Entitlement to ratings in excess of 10 percent for service-connected diabetic neuropathy of the lower extremities prior to February 13, 2018, is denied. Entitlement to ratings in excess of 20 percent for service-connected diabetic neuropathy from February 13, 2018, is denied. REMANDED Entitlement to a separate compensable rating for impotence is remanded. FINDINGS OF FACT 1. Prior to March 28, 2018, the record does not reflect the Veteran’s service-connected nephropathy was manifested by persistent edema and albuminuria with BUN 40 to 80 mg %; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 2. From March 28, 2018, the record does not reflect the Veteran’s service-connected nephropathy was manifested by regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. 3. The record does not reflect the Veteran’s service-connected diabetic neuropathy of the right upper extremity (major) has been manifested by moderate incomplete paralysis during the pendency of this case. 4. The record does not reflect the Veteran’s service-connected diabetic neuropathy of the left upper extremity (minor) has been manifested by severe incomplete paralysis during the pendency of this case. 5. Prior to February 13, 2018, the record does not reflect the service-connected diabetic neuropathy of either lower extremity was manifested by moderate incomplete paralysis. 6. From February 13, 2018, the record does not reflect the service-connected diabetic neuropathy of either lower extremity has been manifested by moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for service-connected nephropathy prior to March 28, 2018; and to a rating in excess of 80 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.115b, Diagnostic Code 7541. 2. The criteria for ratings in excess of 20 percent for service-connected diabetic neuropathy of the upper extremities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.124, 4.124a, Diagnostic Code 8514. 3. The criteria for ratings in excess of 10 percent for service-connected diabetic neuropathy of the lower extremities prior to February 13, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.124, 4.124a, Diagnostic Codes 8521 and 8526. 4. The criteria for ratings in excess of 20 percent for service-connected diabetic neuropathy from February 13, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.124, 4.124a, Diagnostic Codes 8521 and 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1969 to January 1972. This matter is before the Board of Veterans’ Appeals (Board) originally on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, continued a 40 percent rating for service-connected diabetes mellitus. However, this case has a complex procedural history, and during the course of this appeal separate ratings were assigned for nephropathy and diabetic neuropathy of the upper and lower extremities. He was also assigned a 60 percent rating for the diabetes mellitus from February 28, 2017. The Veteran provided testimony at a hearing before a Veterans Law Judge (VLJ) of the Board in September 2015, and a transcript of that hearing is of record. However, the VLJ who conducted that hearing has retired, and the Veteran indicated, by not returning an inquiry form to VA, that he is satisfied with continuing the appeal without an additional hearing. In a November 2017 decision, the Board found the Veteran was entitled to a 60 percent rating for his diabetes mellitus for the period from December 11, 2007, to February 28, 2017; and found that a rating in excess of 60 percent was not warranted. The Board also granted the Veteran’s claim of entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. Moreover, the Board remanded the nephropathy, diabetic neuropathy, and impotence claims for further development to include new examinations. Increased Rating Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. More recently, the Court held that “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran has already been assigned such “staged” ratings for his service-connected nephropathy and diabetic neuropathy of the lower extremities. 1. Entitlement to a rating in excess of 60 percent for service-connected nephropathy prior to March 28, 2018; and to a rating in excess of 80 percent thereafter. The Veteran’s service-connected nephropathy is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7541, which evaluates on the basis of renal dysfunction. For renal dysfunction, a noncompensable (zero percent) rating is assigned where there is albumin and casts with history of acute nephritis; or, hypertension due to renal dysfunction that is noncompensable under Diagnostic Code 7101. A 30 percent rating is assigned when there is constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted when there is constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating requires persistent edema and albuminuria with BUN 40 to 80 mg %; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. Initially, the Board notes that as the Veteran is already in receipt of at least a 60 percent rating for his service-connected nephropathy then the provisions of Diagnostic Code 7101 are not for consideration in this case. The Board also finds that, prior to March 28, 2018, there is evidence of persistent edema, to include on a June 2016 VA examination. However, the record does not reflect the Veteran’s service-connected nephropathy was manifested by BUN 40 to 80 mg %; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. For example, an August 2007 VA examination noted a BUN of 24 and creatinine of 1.4. In addition, the Veteran noted no specific evidence of lethargy or weakness. He also reported that he had gained 30 pounds which he attributed to fluid retention from his diabetes and hypertension. An April 2009 VA examination noted that BUN testing ranged from 7 to 18, and creatinine testing ranged from 0.5 to 1.2. This examination also indicated there no general symptoms of renal dysfunction such as lethargy, weight loss, anorexia, or weight change. The June 2016 VA examination noted BUN was 20 and creatinine was 2.04. Additionally, there were no findings on this examination which reflect generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion due specifically to the service-connected nephropathy. In fact, the examiner opined this disability did not impact the Veteran’s ability to work. A March 2017 VA examination shows BUN 28 and creatinine 1.72. Further, the examination indicated there were no signs or symptoms of renal dysfunction such as lethargy, weakness, anorexia, weight loss, or limitation of exertion. The Board further notes that a review of the medical treatment records do not indicate findings that meet or nearly approximate the criteria for a rating in excess of 60 percent under Diagnostic Code 7541, to include BUN 40 to 80 mg %; or creatinine 4 to 8mg%. In view of the foregoing, the Board finds the Veteran’s claim for a rating in excess of 60 percent for his service-connected nephropathy prior to March 28, 2018, must be denied, to include as a “staged” rating(s). The Board also finds that, from March 28, 2018, the record does not reflect the Veteran’s service-connected nephropathy was manifested by regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. In pertinent part, both the June 2016 and a March 2018 VA examination noted the Veteran did not require regular dialysis. The March 2018 VA examination noted BUN was 44, and creatinine was 3.02. In addition, there was no evidence of markedly decreased kidney function of kidney or other organ symptoms. For example, it was stated he did not have hypertension and/or heart disease due to renal dysfunction. He also did not have a history of recurrent urinary tract or kidney infections. Consequently, a rating in excess of 80 percent for nephropathy from March 28, 2018, is not warranted to include as a “staged” rating(s). 2. Entitlement to ratings in excess of 20 percent for service-connected diabetic neuropathy of the upper extremities. Under the laws administered by VA distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In the instant case, the Veteran’s right side is considered the major (dominant) upper extremity. The Veteran’s service-connected diabetic neuropathy of the upper extremities have been evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8514 based upon impairment of the radial nerve. For the dominate extremity (in this case the Veteran’s right extremity), the Diagnostic Code provides for a 20 percent rating for mild incomplete paralysis, a 30 percent rating for moderate incomplete paralysis, 50 percent for severe incomplete paralysis, and a 70 percent rating for complete paralysis of the radial nerve manifested by a list of impairments to the hand. Similarly, for the non-dominate, left upper extremity, 20 percent ratings are available for mild or moderate incomplete paralysis, a 40 percent rating is available for severe incomplete paralysis, and a 60 percent rating is available for complete paralysis. The term “incomplete paralysis” with this 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. 38 C.F.R. § 4.124a. In this case, the Board notes that a June 2016 VA examination described the peripheral neuropathy of both upper extremities as being mild, while the February 2018 VA examination described both as moderate. Granted, moderate incomplete paralysis would warrant a 30 percent rating for the right upper extremity pursuant to Diagnostic Code 8514. However, the Board is not bound by the descriptions of either examination, although it is evidence to be taken into account in evaluating these disabilities. Moreover, a review of the record indicates no more than mild impairment of both upper extremities. In pertinent part, the June 2016 VA examination reflects the Veteran reported mild intermittent pain of the upper extremities, but not constant pain. He reported moderate paresthesias and/or dysesthesias and severe numbness in the upper extremities bilaterally. Despite these complaints, the Board notes that strength testing was 5/5 (normal) bilaterally for elbow flexion and extension, and for bilateral wrist flexion and extension, grip strength, and pinch strength. Deep tendon reflexes were 2+ (normal) in the biceps, triceps, and brachioradialis bilaterally. Light touch/monofilament testing was normal bilaterally in the shoulder area and inner forearm. The hand/fingers were decreased bilaterally, but not absent. Vibration sensation was normal in the right upper extremity, and decreased in the left upper extremity. Position sense and cold sensation were also decreased bilaterally, but not absent. There was no muscle atrophy. The February 2018 VA examination reflects the Veteran continued to report mild intermittent pain of the upper extremities, but not constant pain. He also reported moderate paresthesias and/or dysesthesias of both upper extremities; as well as severe numbness. However, strength testing was 5/5 (normal) for bilateral elbow flexion and extension, and for bilateral wrist flexion and extension. Grip strength was 4/5 (less than normal) for both upper extremities. Pinch strength was 4/5 for the right upper extremity, and 5/5 for the left upper extremity. In addition, deep tendon reflexes were 2+ (normal) in the biceps, triceps, and brachioradialis bilaterally. Light touch/monofilament testing was normal bilaterally in the shoulder area and inner forearm. The hand/fingers were decreased bilaterally, but not absent. Position sense, vibration sensation, and cold sensation were also decreased but not absent. There was no muscle atrophy. In view of the foregoing, and review of the other evidence of record including the medical treatment records, indicates decreased sensation in the upper extremities due to the service-connected diabetic neuropathy thereof, but no other symptoms. Therefore, the Board finds that the right upper extremity is not manifested by moderate incomplete paralysis, and the left upper extremity is not manifested by severe incomplete paralysis. Therefore, ratings in excess of 20 percent for these disabilities are not warranted under Diagnostic Code 8514 to include as a “staged” rating(s). 3. Entitlement to ratings in excess of 10 percent for service-connected diabetic neuropathy of the lower extremities prior to February 13, 2018. The record reflects that in evaluating the service-connected diabetic neuropathy of the lower extremities the RO considered the criteria of both 38 C.F.R. § 4.124a, Diagnostic Code 8521 and Diagnostic Code 8526 in this case. Diagnostic Code 8521 provides for a 10 percent rating for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, 40 percent for moderate incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular dystrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Diagnostic Code 8526 provides a 10 percent rating is assigned for mild, incomplete paralysis of the anterior crural nerve (femoral). A 20 percent rating is assigned for moderate incomplete paralysis. A 30 percent rating is assigned for severe incomplete paralysis. A 40 percent maximum rating is assigned for complete paralysis of the quadriceps extensor muscles. Id. In summary, both Codes provide the same ratings for mild and moderate incomplete paralysis. As such, there is no explicit benefit if either Code is applies if there is this level of impairment. However, if there is evidence of moderately severe incomplete paralysis or worse, then Diagnostic Code 8521 is available for higher ratings. Therefore, if there is such impairment then Diagnostic Code 8521 will be for application. In this case, the Board finds that neither of the Veteran’s lower extremities were manifested by moderate incomplete paralysis during the period prior to February 13, 2018. Granted, the Veteran reported severe, constant pain of both lower extremities at the June 2016 VA examination; as well as severe paresthesias and/or dysesthesias and severe numbness of both lower extremities. Nevertheless, the June 2016 VA examination reflects strength testing was 5/5 (normal) bilaterally for knee extension and flexion, as well as ankle plantar flexion and dorsiflexion. Deep tendon reflexes were 2+ (normal) for the knee bilaterally, and 0 (absent) for both ankles. Light touch/monofilament testing was normal in the both knee/thigh, decreased for both ankle/lower leg, and absent for the foot/toes. Position sense, vibration sensation, and cold sensation were decreased in the lower extremities bilaterally, but not absent. There was no muscle atrophy. In view of the foregoing, the Board finds that the record does not reflect the Veteran’s impairment of the lower extremities meets or nearly approximates the criteria of moderate incomplete paralysis; i.e., it was not of average or medium quantity, quality, or extent. Therefore, neither lower extremity warrants a rating in excess of 10 percent during this period to include as a “staged” rating(s). 4. Entitlement to ratings in excess of 20 percent for service-connected diabetic neuropathy from February 13, 2018. With respect to the period from February 12, 2018, the Board acknowledges the Veteran continued to report severe, constant pain of both lower extremities at the February 2018 examination. He also continued to report severe paresthesias and/or dysesthesias of the right lower extremity, but moderate symptoms of the left lower extremity. Similarly, he reported severe numbness of the right lower extremity, and moderate numbness of the left lower extremity. Despite the foregoing, the February 2018 VA examination reflects strength testing was 5/5 (normal) bilaterally for knee extension and flexion. Strength testing was 4/5 (less than normal) for right ankle plantar flexion and dorsiflexion, and 5/5 for the left. Deep tendon reflexes were 2+ (normal) for the left knee, and 1+ (decreased) for the right knee. Both ankles were 0 (absent). Light touch/monofilament testing was normal in the left knee/thigh, but decreased for the right knee/thigh as well as the ankle/lower leg and foot/toes bilaterally. Position sense, vibration sensation, and cold sensation were decreased in the lower extremities bilaterally, but not absent. There was no muscle atrophy. In view of the foregoing, the Board finds that neither lower extremity has been manifested by moderately severe incomplete paralysis from February 13, 2018. Therefore, ratings in excess of 20 percent, to include as “staged” rating(s) is not warranted. REASONS FOR REMAND 1. Entitlement to a separate compensable rating for impotence is remanded. The Board notes that the record clearly reflects the Veteran has impotence due to his service-connected diabetes mellitus. However, in determining whether a separate compensable rating is warranted the Board observes that erectile dysfunction is evaluated pursuant to Diagnostic Code 7522, which provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Court recently held that the term “deformity” under this Code includes either internal or external distortion of the penis. Williams v. Wilkie, No. 16-3252 (U.S. Vet. App. August 7, 2018). It does not appear the evidence of record is adequate to determine whether a compensable rating is warranted in light of this holding. As such, it further warrants a remand for the erectile dysfunction claim. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records which cover the period from August 2018 to the present. 2. Request the Veteran identify all private medical care providers who have treated him for his impotence from -August 2018 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his impotence/erectile dysfunction symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a competent medical examination by an appropriately qualified clinician to evaluate the current nature and severity of his impotence/erectile dysfunction. It is imperative the examiner state whether there is external and/or internal distortion of the penis. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel