Citation Nr: 18147689 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-10 007 DATE: November 6, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II (DM), is denied. Entitlement to a rating in excess of 30 percent for headaches is denied. A 40 percent rating, and no higher, from January 23, 2012, to January 22, 2013, for peripheral neuropathy, sciatic nerve, left lower extremity is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, sciatic nerve, left lower extremity, is denied. A 40 percent rating, and no higher, from January 23, 2012, to January 22, 2013, for peripheral neuropathy, sciatic nerve, right lower extremity is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, sciatic nerve, right lower extremity, is denied. A 30 percent rating, and no higher, from January 23, 2012, to January 22, 2013 for peripheral neuropathy, ulnar nerve, left upper extremity, is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent for peripheral neuropathy, ulnar nerve, left upper extremity, is denied. A 40 percent rating, and no higher, since January 22, 2012, for peripheral neuropathy, ulnar nerve, right upper extremity, is granted, subject to the regulations governing the award of monetary benefits. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, ulnar nerve, right upper extremity, is denied. REMANDED Entitlement to a rating in excess of 20 percent for urinary frequency is remanded. Entitlement to a rating in excess of 20 percent for post-traumatic lumbar myositis is remanded. FINDINGS OF FACT 1. The Veteran’s DM requires oral hypoglycemic agents and restricted diet, but management does not require management of the disease requires insulin, restricted diet, and regulation of activities. 2. The Veteran’s headaches are manifested by characteristic prostrating attacks occurring on an average once a month over the last several months, but does not manifest as migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. For the entirety of the period on appeal, peripheral neuropathy, sciatic nerve, left lower extremity, has been manifested by moderately-severe incomplete paralysis of the sciatic nerved, but not severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 4. For the entirety of the period on appeal, peripheral neuropathy, sciatic nerve, right lower extremity, has been manifested by moderately-severe incomplete paralysis of the sciatic nerved, but not severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 5. For the entirety of the period on appeal, the peripheral neuropathy, ulnar nerve, left upper extremity, has been manifested by severe incomplete paralysis of the minor ulnar nerve, but not complete paralysis of the minor ulnar nerve. 6. For the entirety of the period on appeal, the peripheral neuropathy, ulnar nerve, right upper extremity, has been manifested by severe incomplete paralysis of the major ulnar nerve, but not complete paralysis of the major ulnar nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected DM are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for a rating in excess of 30 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.21, 4.124a, DC 8100. 3. Since the January 23, 2012 claim for increase, the criteria for a 40 percent rating, and no higher, for peripheral neuropathy, sciatic nerve, left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8520. 4. Since the January 23, 2012 claim for increase, the criteria for a 40 percent rating, and no higher, for peripheral neuropathy, sciatic nerve, right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8520. 5. Since the January 23, 2012 claim for increase, the criteria for a rating 30 percent, and no higher, for peripheral neuropathy, ulnar nerve, left upper extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8516. 6. Since the January 23, 2012 claim for increase, the criteria for a rating 40 percent, and no higher, for peripheral neuropathy, ulnar nerve, right upper extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969 and from January 1991 to July 1991. In April 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The Board notes that during the course of this appeal, in a November 2013 rating decision, the agency of original jurisdiction (AOJ) granted staged ratings for the Veteran’s bilateral lower extremity neuropathies and left upper extremity neuropathy, as will be discussed in greater detail below. However, as higher ratings are available before at after those dates, and the Veteran is presumed to seek the maximum available benefit for a disability, those claims remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A. Increased Ratings Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also consider whether separate ratings can be assigned for separate periods of time based on the facts found-a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged rating may be appropriate when adjudicating claims for increased ratings for already service-connected disabilities). The Board notes that this appeal stems from a claim for increase received on January 23, 2012. B. Diabetes Mellitus The Veteran’s service connected DM is rated 20 percent disabling under DC 7913. DM warrants a 20 percent rating if management of the disease requires insulin and restricted diet, or oral hypoglycemic agents and restricted diet. A 40 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately rated. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.119, DC 7913. Compensable complications are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, DC 7913, Note(1). The Veteran was afforded a VA examination in July 2011. The examiner stated that the Veteran has not been instructed to follow a restricted or special diet. Further, the Veteran was not restricted in his ability to perform strenuous activities. The twice daily use of glyburide was noted. Episodes of hypoglycemia reactions or ketoacidosis were noted, but none required hospitalization. The Veteran required visits to a diabetic care provider monthly or less often. The Veteran was afforded a VA examination in November 2013. There, the examiner noted that the Veteran was prescribed an oral hypoglycemia agent. DM did not require regulation of activities as part of its medical management. The Veteran required visits to his DM care provider for episodes of ketoacidosis less than two times per month and less than two times per month for episodes of hypoglycemia. No hospitalizations related to DM were noted. The Veteran did not have unintentional weight loss or loss of strength due to DM. At the Board hearing, the Veteran testified that he takes two pills per day to treat his DM. See Board Hearing Transcript (Tr.) at 2. VA treatment records reflect treatment of DM with medication. Records do not reflect that the Veteran takes insulin, restricts his activities due to DM or is on a restricted diet. The Board concludes that a rating in excess of 20 percent for DM is not warranted. Under DC 7913, a rating in excess of 20 percent requires the use of insulin. There is no evidence that the Veteran has been prescribed insulin to treat his DM. To that end, the VA examination reports show that the Veteran takes a hypoglycemic agent to treat DM. Further, the Veteran testified that he continues to take such an agent for treatment of DM. There is no lay or medical evidence that the Veteran takes insulin to treat his DM. As such, a rating in excess of 20 percent is not warranted. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). For the foregoing reasons, the preponderance of the evidence reflects that a rating higher than 20 percent is not warranted for DM, and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Therefore, entitlement to a higher rating for the Veteran’s DM is not warranted. C. Headaches The Veteran’s headaches are rated 30 percent disabling under DC 8100. Under that DC, migraines with characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, DC 8100. The Veteran was afforded a VA examination in August 2011. There, the Veteran reported pulsating pain, and migraine-type headaches. He reported headaches two to three times per month. Less than half of the attacks were described as prostrating. He reported that headaches last for hours and he takes Panadol. The Veteran was afforded another VA examination in December 2014. There, the Veteran reported headaches two to three times per week. He takes Panadol. Headache pain was described as pulsating and on both sides. Non-headache symptoms were sensitivity to light and sound, occurring less than one day. The examiner noted that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain, which occurs once every month. There were no very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. VA treatment records note ongoing complaints of headaches, consistent with the symptomatology described at the December 2014 VA examination. The Board concludes that a rating in excess of 30 percent for headaches is not warranted. Under DC 8100, a rating in excess of 30 percent requires migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The examiner at the December 2014 VA examination denied that the Veteran experienced such. Indeed, the record reflect that, at most, the Veteran experiences approximately two or three headaches per month. Further, the December 2014 VA examination report notes that prostrating attacks occur only once per month, indicating that such attacks are not very frequent. As such, the criteria for a rating in excess of 30 percent for headaches are not met. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, 28 Vet. App. at 369-70. For the foregoing reasons, the preponderance of the evidence reflects that a rating higher than 30 percent is not warranted for headaches, and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Therefore, entitlement to a higher rating for the Veteran’s headaches is not warranted. D. Neuropathy The Veteran’s right upper extremity neuropathy has been rated 30 percent disabling under DC 8516. The Veteran’s left upper extremity neuropathy was rated 20 percent disabling until January 22, 2013, and then 30 percent disabling under DC 8520. The Veteran’s bilateral upper extremity neuropathy was rated 10 percent disabling until January 22, 2013, then 40 percent disabling under DC 8520. Under DC 8516, a 10 percent disability rating is warranted for mild incomplete paralysis of the major or minor ulnar nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the minor ulnar nerve. A 30 percent disability rating is warranted for moderate incomplete paralysis of the major ulnar nerve or severe incomplete paralysis of the minor ulnar nerve. A 40 percent disability rating is warranted for severe incomplete paralysis of the major ulnar nerve. The highest 50 and 60 percent ratings are assigned when there is complete paralysis of the ulnar nerve of the minor and major upper extremities, respectively, with the “griffin claw” deformity due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences, loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb, and flexion of the wrist is weakened. 38 C.F.R. § 4.124a. The Veteran is right handed. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately-severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. Complete paralysis of the sciatic nerve warrants an 80 percent rating where the foot dangles and drops, there is no active movement possible of muscle below the knee and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Descriptive words such as “slight,” “moderate” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in August 2011. There, decreased sensation in the hands and feet was noted. All radial pulses were normal, and there were no trophic changes to any extremity. Temperature at each extremity was normal. Vibration was decreased in each extremity. Pinprick was decreased at each extremity. There were no dysesthesias. Detailed motor examination was normal. The Veteran was afforded a VA examination in November 2013. There, constant pain in all extremities was described as moderate. Intermittent pain in all extremities was described as severe. Paresthesias in all extremities was described as severe. Numbness in all extremities was described as severe. Pinch test was less than normal strength, as was grip test. Ankle plantar flexion and ankle dorsiflexion was less than normal. Reflexes were decreased in the biceps, triceps, brachioradialis and knees. Light touch was decreased in the left inner/outer forearm, hands, fingers, ankles and lower leg. Light touch was absent in the feet and toes. Vibration sensation was absent in the bilateral lower extremities. There was no muscle atrophy. There was mild loss of hair at the distal legs. Paralysis was incomplete in all extremities. VA treatment records note ongoing complaints of pain and numbness in all extremities. For the lower extremities, the Board finds that 40 percent ratings are warranted under DC 8520 for the entirety of the period on appeal. The evidence reflects that the Veteran’s disabilities have manifested as moderately severe incomplete paralysis of the sciatic nerve. To that end, at the November 2013 VA examination, the intermittent pain was severe, as was paresthesias and numbness. The record reflects decreased sensation in the lower extremities and the record reflects that the symptomatology has remained constant throughout the period on appeal. However, ratings in excess of 40 percent are not warranted. Such a rating would require marked muscular atrophy. There has been no showing of any lower extremity atrophy during the period on appeal. As such, ratings of 40 percent for the entirety of the period on appeal are warranted. For the upper extremities, a rating of 30 percent for the left extremity (minor) and a rating of 40 percent for the right extremity (major) are warranted throughout the entirety of the period on appeal are warranted. To that end, the record reflects severe intermittent pain, severe paresthesias, and severe numbness in the upper extremities throughout the period. Further, sensation of both upper extremities is notably decreased. However, ratings in excess of 30 percent for the left extremity and 40 percent for the right extremity are not warranted. Such ratings would require complete paralysis of the ulnar nerve. There has been no showing of any complete paralysis of the ulnar nerve during the period on appeal. Indeed, such was denied repeatedly on VA examination. As such, ratings of 30 (left) and 40 (right) percent for the entirety of the period on appeal are warranted. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, 28 Vet. App. at 369-70. For the foregoing reasons, ratings of 40 percent for the lower extremities, 30 percent for the upper left extremity, and 40 percent for the lower left extremity are warranted throughout the period on appeal. The preponderance of the evidence reflects any higher ratings are not warranted, and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Regarding the claim for an increased rating for urinary frequency, the Veteran was afforded a VA examination in December 2014, where it was noted that the Veteran had a daytime voiding interval between two and three hours. At the April 2016 Board hearing, the Veteran testified that the urinates 15 to 20 times during the day. See Board Hearing Tr. at 6. In light of the evidence of possible worsening of the service-connected disability, a new VA examination detailing the current severity of the disability is necessary. See Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). Regarding the claim for an increased rating for the low back disability, the Veteran was afforded a VA examination in November 2013. A recent decision of the United States Court of Appeals for Veterans Claims (Court) provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59 and held that sentence creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, VA examinations must include range of motion testing of the pertinent joint in active motion, passive motion, and in weight-bearing and nonweight-bearing. Here, the VA examination reports of record do not contain findings with respect to the other requirements of 38 C.F.R. § 4.59 in compliance with the holding in Correia. Thus, remand is necessary to cure that defect. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected urinary frequency. The electronic claims folder must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. 2. Schedule the Veteran for a new VA examination to assess the severity of his low back disability. The electronic claims folder must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. All indicated tests should be performed and all findings should be reported in detail. The examiner must test the range of motion for the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. Once this testing is completed, the examiner must compare the current results with range of motion testing from prior examinations and provide an opinion as to whether the current results with regard to ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing are similar to what would have been shown during prior examinations if such testing would have been conducted at the time of those examinations, to the extent possible. The examiner should also render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. This should be expressed in terms of degrees of additional range of motion loss, to the extent possible. The examiner is advised that the Veteran is competent to report limitation during flare-ups. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel