Citation Nr: 18148567 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-17 165 DATE: November 7, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II (diabetes), is denied. From December 21, 2012 to August 2, 2018, a rating in excess of 20 percent for left lower extremity diabetic neuropathy is denied. A 40 percent rating, but no higher, for left lower extremity diabetic neuropathy is granted from August 2, 2018. A 40 percent rating, but no higher, for right lower extremity diabetic neuropathy is granted from December 21, 2012. Entitlement to spousal special monthly compensation (SMC) based on the need for aid and attendance or housebound status is denied. FINDINGS OF FACT 1. The Veteran has not been prescribed insulin or regulation of activities to treat his diabetes at any time during the appeal period. 2. From December 21, 2012, to August 2, 2018, the Veteran’s left lower extremity diabetic neuropathy was manifested by moderate incomplete paralysis affecting the sciatic nerve. 3. Since August 2, 2018, the Veteran’s left lower extremity diabetic neuropathy has been manifested by moderately severe incomplete paralysis affecting the sciatic nerve. 4. For the entire the appeal period, the Veteran’s right lower extremity diabetic neuropathy has been manifested by moderately severe incomplete paralysis affecting the sciatic nerve. 5. The Veteran’s spouse is not so disabled as to be rendered housebound or in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. From December 21, 2012, to August 2, 2018, the criteria for a rating in excess of 20 percent for left lower extremity diabetic neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.124a, DCs 8520, 8621. 3. Since August 2, 2018, the criteria for 40 percent rating, but no higher, for left lower extremity diabetic neuropathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.124a, DC 8520. 4. The criteria for a 40 percent rating, but no higher, for right lower extremity diabetic neuropathy are met from December 21, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.124a, DC 8520. 5. The criteria for spousal SMC based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 38 C .F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for further development in March 2018. Increased Ratings Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever 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). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. 1. Entitlement to a rating in excess of 20 percent for diabetes is denied. I. Veteran’s Contentions The Veteran seeks a rating higher than 20 percent for his service-connected diabetes. Specifically, he maintains that he has a regulation of activities due to complete loss of use of a sex organ. See December 2013 Notice of Disagreement (NOD). II. Rating Criteria The rating criteria for evaluating diabetes mellitus awards a 20 percent disability rating when the treatment for this disease requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. 38 C.F.R. § 4.119, DC 7913. The next higher rating of 40 percent rating is assigned when the treatment of diabetes mellitus requires insulin, a restricted diet, and regulation of activities. Id. “Regulation of activities,” for purposes of evaluation of diabetes mellitus, refers to the need to monitor, restrict, or modify activity, particularly strenuous activity, in order to maintain blood sugar control. Appropriate findings would relate to the need to monitor blood sugar before, during, or after activity; to eat sugary foods; to take additional medication; or directives to not engage in strenuous activity due to blood sugar levels. 38 C.F.R. § 4.119, DC 7913. “Regulation of activities” requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2011). Moreover, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the criteria listed in the 40 percent rating must be met in order to warrant such a rating. The provisions of 38 C.F.R. § 4.7 pertaining to a higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, do not apply. See Camacho at 366-367; see Tatum v. Shinseki, 23 Vet. App. 152, 156 (2011) (where there are successive rating criteria as in DC 7913, to grant a higher rating where only two out of three criteria are met would eviscerate the need for different ratings since symptoms established for either rating might be the same). Thus, in order to meet the criteria for a 60 or 100 percent rating, all the criteria for each lower rating must be met. III. Analysis The Veteran is in receipt of a 10 percent rating from December 29, 2003, and a 20 percent rating from December 21, 2012, for his service-connected diabetes. The appeal period is from December 21, 2012, the date of his increased rating claim, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Here, a review of the record reveals that treatment of his diabetes has not required insulin or regulation of activities at any time during the appeal period. In this regard, a May 2013 VA treatment record noted that the Veteran did not wish to start on insulin or any additional medications for his diabetes. Further, during a VA examination in November 2013, the examiner indicated treatment for his diabetes consists of a restricted diet and prescribed oral hypoglycemic agents. No regulation of activities requirement was endorsed and the Veteran’s ability to work was not found to be impacted. A March 2017 VA treatment noted the Veteran “may need insulin” but follow-up treatment records since that time do not include an insulin prescription or any indication that the Veteran takes insulin. Lastly, during his most recent VA examination in August 2018, the examiner indicated treatment for his diabetes consists of prescribed oral hypoglycemic agents. No regulation of activities requirement was endorsed and the Veteran’s ability to work was found to be impacted. Accordingly, the Board finds that the only medications prescribed to treat the Veteran’s diabetes are the oral hypoglycemic agents contemplated by the currently assigned 20 percent rating and no medical evidence of a requirement of regulation of his activities. To the extent the Veteran asserts that he does have a regulation of activities (i.e. loss of use of a sex organ), his lay opinion does not constitute medical evidence of regulation of activities as defined above, and he is already compensated for loss of use of a creative organ. Moreover, there is no evidence that his diabetes treatment requires insulin, which is also required in addition to prescribed regulation of activities to at least allow for the next higher rating of 40 percent rating under DC 7913. Thus, as the preponderance of the evidence is against the claim, there is no benefit of the doubt to resolve in the Veteran’s favor and an increased rating is not warranted. 2. Entitlement to a rating in excess of 20 percent for left lower extremity diabetic neuropathy prior to August 2, 2018, is denied. 3. Entitlement to a rating in excess of 20 percent for left lower extremity diabetic neuropathy from August 2, 2018, is granted. 4. Entitlement to a rating in excess of 30 percent for right lower extremity diabetic neuropathy is granted. I. Veteran’s Contentions The Veteran maintains that higher ratings are warranted for his bilateral lower extremity diabetic neuropathy than are currently assigned. Specifically, he asserts that he has severe pain in both legs; severe nerve damage in his right lower extremity such that he cannot stand for more than three to four minutes; not being able to walk more than 20 feet; continuous use of a walker; and needing assistance cooking, cleaning, and bathing. He also maintains that he has complete loss of ability to climb stairs; loss of sex organ; lack of flexibility in both legs such that he needs assistance in and out of cars and to use the bathroom; and he had to have a lift installed in his home to help him. See December 2013 NOD and May 2015 VA Form 9. II. Rating Criteria The Veteran’s bilateral lower extremity diabetic neuropathy is currently rated pursuant to DC 8621. Under DC 8621, external popliteal nerve (common peroneal), complete paralysis of the nerve (foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalange of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes) warrants a 40 percent rating, severe incomplete paralysis warrants a 30 percent rating, moderate incomplete paralysis warrants a 20 percent rating and mild incomplete paralysis warrants a 10 percent rating. 38 C.F.R. § 4.124a, DC 8621. Under DC 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating, and moderately severe incomplete paralysis of the sciatic nerve warrants a 40 percent rating. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. A maximum 80 percent rating is warranted for 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). 38 C.F.R. § 4.124a, DC 8520. It is noted that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture 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 bilateral, combine with application of the bilateral factor. The words, “severe,” “moderately severe”, “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board evaluates all of the evidence to the degree that its decisions are “equitable and just.” 38 C.F.R. § 4.6. III. Analysis The Veteran is currently in receipt of a 20 percent rating from December 29, 2004, for his service-connected left lower extremity diabetic peripheral neuropathy and a 20 percent rating from December 29, 2004, and a 30 percent rating from December 21, 2012, for his service-connected right lower extremity diabetic peripheral neuropathy. The appeal period is from December 21, 2012, the date of his increased rating claim, plus the one- year “look back” period. Gaston, at 982. VA treatment records note the Veteran’s complaints of peripheral neuropathy pain in both legs (March 2011 through June 2013); neuropathy in both legs that make him unsteady and prone to falling in his home (March 2011); and gait/ambulatory dysfunction with a history of falls, instability and/or dysequilibrium, leg weakness, and use of cane endorsed (February 2013). The Veteran underwent an examination during the course of his VA treatment in May 2013. He reported weakness and numbness in his lower extremities for many years that is worse in the last nine months and that he sometimes feels pain shooting from lower back but most of the time in his lower extremities and is worse on the right side. The examiner noted an antalgic free gait, that he is unable to do heel and toe walking, and use of a cane. Reflex testing revealed deep tendon reflexes bilaterally symmetrical patellar trace and absent right, ankle absent, and toes mute. Motor strength testing showed bulk normal and no abnormal movements with strength 4/5 proximally (giveaway weakness due to pain) 3 to 4/5 in dorsiflexion and plantar flexion and 2/5 in right EHL and 3/5 in left EHL. Sensory testing showed reduced in right lower extremity to mid-thigh and left lower extremity to the knee. The examiner noted an abnormal EMG study and evidence of moderately severe sensory motor neuropathy of the right lower extremity and indicated the Veteran declined testing on the left lower extremity due to discomfort. The Veteran was afforded a VA peripheral nerves examination in November 2013. He reported chronic pain and weakness in his bilateral lower extremities which has progressively worsened and difficulty ambulating without a walker. He indicated that with walker he is able to walk maximum of 1/2 block and without a walker he is unable to walk more than 20 steps. The examiner noted moderate constant pain, intermittent pain, paresthesias and/or dysesthesias in the bilateral lower extremities, moderate numbness in the left lower extremity, and severe numbness in the right lower extremity. The examiner reported 4/5 muscle strength in knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion in the left lower extremity and 3/5 muscle strength knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion in the right lower extremity. Reflex testing revealed 1+ (hypoactive) in the bilateral knees and ankles and sensory testing was decreased in the knee/thigh, ankle/lower leg, and foot/toes in the bilateral lower extremities. No muscle atrophy was found. The examiner indicated moderately severe incomplete paralysis for the right lower extremity and moderate incomplete paralysis for the left lower extremity of the sciatic nerve and moderate incomplete paralysis of the femoral nerve in both lower extremities. EMG findings from May 2013 were noted as abnormal in both lower extremities. The Veteran’s ability to work was noted as impacted in that he would be unable to work as an operations manager due to his peripheral neuropathy and associated weakness and limited mobility. A March 2017 VA treatment record noted moderately severe diabetic peripheral neuropathy of the right lower extremity. The Veteran was afforded another VA peripheral nerves examination in August 2018. He reported his diabetic peripheral neuropathy being a lot worse and taking medication and not working. He also reported not being able to stand for more than two to three minutes due to pain and weakness in his legs, that he can see his toes moving but cannot feel them, and that he has been using a walker on and off since 2013 but now he uses it daily. The examiner noted severe intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities. The examiner reported 5/5 muscle strength in knee extension and 4/5 knee flexion, ankle plantar flexion, and ankle dorsiflexion in both lower extremities. Reflex testing revealed 1+ (hypoactive) in the bilateral knees and 0 (absent) in the bilateral ankles. Sensory testing was normal in the knee/thigh and absent in the ankle/lower leg and foot/toes in both lower extremities. Position sense, vibration sensation, and cold sensation were absent in both lower extremities. No muscle atrophy was found. The examiner indicated mild incomplete paralysis of the sciatic nerve and femoral nerve in both lower extremities. The examiner noted abnormal EMG findings from May 2013 and indicated the Veteran declined testing on the left lower extremity due to discomfort and noted moderately severe axonal sensory motor neuropathy of the right lower extremity. The Veteran’s ability to work was noted as impacted in that he is unable to stand more than two to three minutes at a time and has difficulty walking due to pain, numbness, and weakness in both legs. In light of the evidence of record, the Board finds that a 40 percent rating for right lower extremity diabetic peripheral neuropathy is warranted for the entire appeal period and staged increased ratings for left lower extremity diabetic peripheral neuropathy are warranted under DC 8520. In allowing for application of DC 8520 over the entire appeal period, the Board emphasizes that both the November 2013 and August 2018 VA examiners, who only diagnosed bilateral lower extremity diabetic peripheral neuropathy, found that the sciatic nerve was involved in the Veteran’s disability picture. Moreover, the sciatic nerve, external popliteal nerve (common peroneal), musculotaneous nerve (superficial peroneal), anterior tibial nerve (deep peroneal), and posterior tibial nerve are part of the sciatic branch, and affect the same functions. Mallikarjun, Adibatti and Sangeetha, V., Study on Variant Anatomy of Sciatic Nerve, (Aug. 20, 2014) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4190700/. Accordingly, a 40 percent rating under DC 8520 is assigned for moderately severe incomplete paralysis for right lower extremity diabetic peripheral neuropathy for the entire appeal period, based on the Veteran’s reports of chronic neuropathy pain, weakness, and instability since March 2011 (indicating his right side as worse than his left side), abnormal EMG findings, use of a cane/walker, the diagnosis of moderately severe sensory motor neuropathy (May 2013 VA examination report), a finding of moderately severe incomplete paralysis of the sciatic nerve (November 2013 VA examination report), and the notations of moderate to severe constant and intermittent pain, paresthesias and/or dysesthesias, and numbness (November 2013 and August 2018 VA examination reports). On the other hand, a 20 percent rating is appropriately assigned (notably DC 8621 and DC 8520 both assign a 20 percent rating for moderate incomplete paralysis) for moderate incomplete paralysis for left lower extremity diabetic neuropathy from December 21, 2012, based on the Veteran’s reports of chronic neuropathy pain, weakness, and instability (indicating his right side as worse than his left side), use of a cane/walker, abnormal EMG findings, a finding of moderate incomplete paralysis of the sciatic nerve (November 2013 VA examination report), and the notations of moderate constant and intermittent pain, paresthesias and/or dysesthesias, and numbness (November 2013 VA examination report). However, beginning August 2, 2018, the criteria for a 40 percent rating under DC 8520 for moderately severe incomplete paralysis are met, as that is the first indication of severe neurologic symptomatology for the left lower extremity including severe constant pain, paresthesias and/or dysesthesias, and numbness. Ratings in excess of the 20 and 40 percent assigned herein are not warranted, as there is no indication of marked muscular atrophy in the record for either lower extremity, involvement has been wholly sensory, and any decrease in muscle strength, reflex, and sensory testing is already contemplated in the ratings as assigned. To the extent the Veteran has indicated that he has severe right leg nerve damage and that he cannot feel movement in his bilateral toes (he is competent to report on the latter), the Board affords more probative value to the VA examiners, who have specifically found no complete paralysis of either lower extremity at any time throughout the appeal period. In assigning the ratings herein, the Board has changed the Veteran’s DC to 8520, as to do so allows for a more favorable disability rating. To compensate his disability under both 8520 and 8621 would constitute prohibited pyramiding. Moreover, as the Veteran has been assigned a 100 percent schedular rating and SMC under 38 U.S.C. § 1114(s) for the entire appeal period, the Board need not address whether a total disability rating based on individual employability is warranted. 5. Entitlement to spousal SMC based on the need for aid and attendance or housebound status is denied. Under 38 C.F.R. § 3.351(a)(2), SMC is payable to a veteran by reason of the veteran’s spouse being in need of aid and attendance. The authority for section 3.351(a)(2) is 38 U.S.C. § 1115(1)(E), which provides, in pertinent part, that any veteran entitled to VA compensation benefits and whose disability is rated not less than 30 percent disabling, shall be entitled to additional compensation for dependent in certain specified amounts, including for a spouse who is a patient in a nursing home or who is blind, or so nearly blind or significantly disabled as to need or require the regular attendance of another person. 38 C.F.R. § 3.351. The relevant criteria are outlined above. 38 C.F.R. § 3.352(a). If the criteria for additional compensation based on the need for regular aid and attendance are not met, a lesser amount of compensation can be awarded if the Veteran’s spouse is shown to be permanently housebound by reason of disability. A person will be considered to be permanently housebound when he/she is substantially confined to his/her house (ward or clinic areas, if institutionalized) or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout her lifetime. 38 U.S.C. § 1311(d); 38 C.F.R. § 3.350. Here, entitlement to spousal aid and attendance or housebound status benefits are not warranted. In June 2017, the Veteran’s spouse underwent a private examination by a physician who reported her findings on a VA Form 21-2680. Specifically, Dr. A. L. J noted pain in the shoulder region that limits pushing, pulling, reaching, and carrying more than five pounds; left hand pain and tingling which results in decreased grip strength and difficulty with motor movement; prior right ankle fracture surgery that resulted in an unsteady gait and a need for a cane and to sit/take breaks frequently; and frequent vomiting and abdominal pain. However, Dr. A. L. J. found the Veteran’s spouse is able to feed herself; prepare her own meals; does not need assistance in bathing and attending to other hygiene needs; is not legally blind; does not require nursing home care; does not require medication management; and has the ability to manage her own financial affairs. Moreover, she indicated the Veteran’s spouse leaves the house to attend doctor's appointments or grocery store shopping once a week on average. Thus, in light of the evidence above, the Board finds that the Veteran’s spouse does not live in a nursing home, is not blind or so nearly blind or significantly disabled as to need or require the regular attendance of another person, and is not permanently housebound. Therefore, the above criteria for spousal aid and attendance or housebound benefits are not met. To the extent the Veteran asserts his spouse needs assistance bathing, cooking, and changing her clothes, the Board affords more probative value to Dr. A. L. J.’s medical findings and opinion during her contemporaneous private examination. Therefore, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application and the appeal must be denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel