Citation Nr: 18150647 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-34 420 DATE: November 15, 2018 ORDER 1. Entitlement to a rating in excess of 40 percent for diabetes mellitus type II is denied. 2. Entitlement to service connection for peripheral neuropathy of right upper extremity as a complication of diabetes mellitus is denied. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity as a complication of diabetes mellitus is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran’s diabetes mellitus has been manifest by no worse than required regulation of activities, restricted diet, and one or more daily injections of insulin. 2. The preponderance of the evidence is against a finding that peripheral neuropathy of the upper extremities had its onset in service, manifested within one year of service discharge, and the Veteran does not have peripheral neuropathy of the bilateral upper extremities that is a complication of diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for diabetes mellitus have not been met for the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities as a complication of diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1965 to December 1967. The Veteran was offered and declined a hearing in this case. Increased Ratings – Generally The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 138 0-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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. 38 C.F.R. Part 4. 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; 38 C.F.R. § 4.1. Separate diagnostic codes 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is prohibited. 38 C.F.R. § 4.14. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran’s increased rating claim on appeal, the Board has considered the relevant temporal period, including one year prior to his increased rating claim, as well as whether any additional staged rating periods are warranted. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id. 1. Entitlement to a rating in excess of 40 percent for diabetes mellitus The Veteran seeks entitlement to a rating in excess of 40 percent for diabetes mellitus, type II. His diabetes mellitus type II is evaluated under DC 7913. See 38 C.F.R. § 4.119, DC 7913. Pursuant to DC 7913, diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent disability rating. Id. 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 per month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, warrants a 60 percent disability rating. Id. Finally, 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, warrants a maximum schedular 100 percent disability rating. Id. The Board notes that “regulation of activities” is defined in the rating criteria for a 100 percent disability rating under DC 7913 as “avoidance of strenuous occupational and recreational activities.” Id. Although not specified in the rating criteria, the Board finds that this definition also applies to the “regulation of activities” discussed in the 40 percent and 60 percent disability ratings under DC 7913. Id. Additionally, the Board notes that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). A January 2013 statement from the Veteran states that his service-connected diabetes mellitus has worsened, as he is now insulin dependent. The Veteran was afforded an in-person VA examination in January 2014 for diabetes mellitus. The examiner reviewed the Veteran’s claims file and VA treatment record. The examiner explained that the Veteran had been diagnosed with diabetes mellitus type II and had been prescribed oral hypoglycemic agents and one injection per day of insulin. The examiner noted that regulation of activities was not required, and that the Veteran was required to visit his diabetic care provider for episodes of ketoacidosis and/or hypoglycemia less than two times per month, with zero episodes requiring hospitalization for these conditions in the past twelve months and no progressive unintentional loss of weight and/or strength attributable to diabetes mellitus type II. The examiner explained that the Veteran did not have any recognized complications of diabetes mellitus, and that his diabetes mellitus did not impact his ability to work. An April 2014 letter from the Veteran states that he is currently taking insulin for diabetes mellitus and disagrees with the 20 percent rating initially assigned by the RO. The Veteran also asserts that “the doctor who performed the [January 2014] compensation examination clearly did not review [his] primary care physician’s notes…” The Board finds that the January 2014 examination was adequate because it was based on an in-person examination of the Veteran, a review of the Veteran’s entire claims file and VA treatment records, and provides an opinion that is supported by a well-reasoned rationale; moreover, it contains sufficient information to allow the Board to apply the relevant rating criteria. The Board notes that the Veteran’s primary physician’s notes have been reviewed by the RO and were considered in the assignment of a rating increase from 20 percent to 40 percent for diabetes mellitus. Further, the Board notes that these records do not show that the Veteran is entitled to a rating in excess of 40 percent for diabetes mellitus, as explained below. A February 2015 letter from the Veteran states that he has been diagnosed with diabetes mellitus and is required to use insulin on a daily basis, maintain a very controlled diet, and regulate his daily activities. The Veteran states that it is his understanding that his condition is to be rated at 40 percent. In an August 2016 letter from a private medical professional, he wrote that the Veteran’s diabetes mellitus requires insulin, a restricted diet, and regulation of activities. The Board notes that since this letter, the Veteran’s diabetes mellitus has been rated at 40 percent by the RO. Following a review of the evidence of record, the Board finds that the Veteran’s condition does not warrant entitlement to a rating in excess of 40 percent for diabetes mellitus. The reasons follow. As noted above, in order to receive an increased 60 percent disability rating for diabetes mellitus, the evidence must show that the Veteran’s diabetes mellitus 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 evaluated. 38 C.F.R. § 4.119, DC 7913. Notably, while the Veteran has been previously granted an increased 40 percent disability rating for his diabetes mellitus based upon an August 2016 letter from a medical professional stating that his diabetes mellitus required insulin, restricted diet, and regulation of activities, the preponderance of the evidence of record is against a finding that the Veteran’s diabetes mellitus has resulted in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider for any of the period on appeal. Indeed, upon VA examination in January 2014, the examiner noted that the Veteran visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month, and that he has had zero episodes of ketoacidosis or hypoglycemia over the past 12 months prior to the exam. As such, an increased 60 percent disability rating is not warranted. Likewise, the Veteran has not demonstrated more severe symptomatology attributable to his diabetes mellitus which would entitle him to an increased 100 percent disability rating under the relevant rating criteria for the rating. See Id. Thus, the preponderance of the evidence of record weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 40 percent for diabetes mellitus. There is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107. Service Connection – Generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Where a Veteran served 90 days or more of active service, and certain chronic diseases, such as peripheral neuropathy, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Peripheral neuropathy is a chronic disease. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to diabetes mellitus In a January 2013 statement, the Veteran requests consideration for entitlement to service connection for peripheral neuropathy of his upper extremities as secondary to his service-connected diabetes mellitus. The Board notes that although the Veteran is presumed to have been exposed to herbicide agents during active service, peripheral neuropathy is not among the enumerated diseases for which service connection may be granted on a presumptive basis due to exposure to herbicide agents, unless early-onset peripheral neuropathy has become manifest to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during service. See 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The Board notes that the record does not show evidence of early-onset peripheral neuropathy within one year after the last date on which the Veteran was exposed to an herbicide agent during service. As a preliminary matter, the record does not show that the Veteran suffered symptoms of peripheral neuropathy of the bilateral upper extremities during active service or within one year of active service. The Veteran’s August 1964 report of medical examination prior to enlistment in active service shows a normal neurologic clinical evaluation, and his October 1967 Report of Medical Examination at separation from service also shows a normal neurologic clinical evaluation. In the October 1967 Report of Medical Examination, the Veteran denied a history of loss of arm, finger, or toe, a history of neuritis, and a history of paralysis. This is evidence against direct service connection for peripheral neuropathy. Additionally, as already stated above, there is no competent evidence that peripheral neuropathy manifested within one year following service discharge. Thus, direct and presumptive service connection is not warranted. The Board will discuss whether the Veteran has peripheral neuropathy of the upper extremities as a complication of diabetes mellitus below. February 2013 VA treatment records show that the Veteran was having neuropathic symptoms of his feet and sometimes hands, as reported at his annual visit. September 2013 VA treatment records show that the Veteran sought medical care for neuropathic symptoms of his hands and feet because he was feeling sudden shooting pains in the dorsal aspect of his hands or dorsal aspect of his feet while sitting or relaxing, but did not feel these pains while moving around. He reported that these pains lasted about 30 seconds before going away. The medical professional treating the Veteran noted that the Veteran was experiencing worsening neuropathy of the upper and lower extremities. The Veteran was afforded an in-person VA examination in January 2014 for diabetic sensory-motor peripheral neuropathy. The examiner reviewed the Veteran’s file and noted that the Veteran had been diagnosed with peripheral neuropathy in September 2013. The examiner explained that the Veteran had a diagnosis of diabetes mellitus type II, and that the Veteran relates a history of occasional sharp pain in his hands and feet, lasting a few minutes at a time, and occasional numbness in the hands, also lasting a few minutes at a time with no corresponding numbness in the feet, and that the Veteran had undergone no nerve conduction testing to determine the potential etiology of his symptoms. The examiner explained that the Veteran reported symptoms attributable to diabetic peripheral neuropathy, including mild intermittent pain in the bilateral upper and bilateral lower extremities, and mild numbness in the bilateral upper extremities. No constant pain or paresthesia was noted, and no numbness was noted in the bilateral lower extremities. The examiner noted the Veteran’s muscle strength and reflexes to be normal, as well as all monofilament/light touch testing results, position sense, and vibration sensation testing. No muscle atrophy or trophic changes were noted. The examiner opined that the Veteran did not have upper extremity diabetic peripheral neuropathy, and had no other relevant symptoms. The examiner reasoned that there was no objective evidence of diabetic peripheral neuropathy on the examination, and that he was unable to determine the etiology of the Veteran’s intermittent subjective symptoms or how the diagnosis of diabetic peripheral neuropathy was reached previously. The examiner documented that the Veteran’s diagnosis of diabetic peripheral neuropathy could not be confirmed based on the available information. A March 2014 letter from a private medical professional states that the Veteran reported experiencing “freak” pain in his hands and feet, which lasted about 10 seconds, is very severe, and then ends. He also reported numbness and tingling in his fingers and toes, and stated that these symptoms had been present for the past year or so, increasing in severity and frequency closer to the exam. An EMG and nerve conduction study was conducted, which revealed mild early axonal distal symmetric polyneuropathy and bilateral L5 and left S1 radiculopathies with chronic neurogenic changes, reinnervation and ongoing denervation. An April 2014 letter from the Veteran states that his request for service connection for peripheral neuropathy was refused based on the compensation examination doctor’s rolling a pin prick wheel over his clothing and hitting him in various areas with a rubber hammer. The Veteran states that his peripheral neuropathy has been noted in his primary care physician’s notes and is supported by nerve conduction tests. The Veteran asserts that the January 2014 VA examiner did not review his primary care physician’s notes, and thus questions the adequacy of the exam. The Board finds the January 2014 examination was adequate because it involved an in-person examination of the Veteran and included a thorough review of the Veteran’s entire file. Moreover, the examiner’s findings were supported by a well-reasoned rationale and the examination contains sufficient information to allow the Board to consider the relevant evidence. A February 2015 letter from the Veteran stated that he suffers from peripheral neuropathy of the bilateral upper and lower extremities in the form of pain, tingling, and numbness. He also reported that he gets dizzy very easily and often has to steady himself when rising to a standing position. The Veteran also asserted that he suffers from proximal neuropathy, focal neuropathy, and erectile dysfunction. The Board notes that the Veteran has filed a separate claim for erectile dysfunction and this claim is not currently before the Board. The Board further notes that focal neuropathy and proximal neuropathy are forms of peripheral neuropathy. A March 2015 letter from a VA medical provider documents that the Veteran has type II diabetes, is insulin dependent, and has upper and lower bilateral extremity polysensory diabetic neuropathy. March 2016 VA treatment records show that the Veteran was experiencing neuropathy of the hands and feet. A May 2016 private examination documents that the Veteran has had diabetes mellitus since he was 50 years old and has had paresthesia in his lower extremities for many years, which has worsened over the years. The medical professional explained that the Veteran had symptoms attributable to diabetic peripheral neuropathy, including constant pain and decreased sensation in his hands and fingers. The medical professional documented decreased light touch sensation results in the Veteran’s hands, fingers, bilateral ankles, lower legs, feet, and toes, decreased vibration sensation in the Veteran’s bilateral upper and lower extremities, with cold sensation normal in the bilateral upper extremities and decreased in the right lower extremity. After examining both the Veteran’s upper and lower bilateral extremities, the private medical professional reported findings consistent with mild to moderate diabetic polyneuropathy. The medical professional opined that the Veteran did not have upper extremity diabetic peripheral neuropathy, and that EMG studies had been performed on the bilateral upper and lower extremities. The examiner explained that the Veteran had moderate to severe carpal tunnel syndrome in his upper extremities, with diabetic peripheral neuropathy in his bilateral lower extremities. The Veteran was afforded an electromyography report in May 2016. Nerve conduction studies were performed in the arms and legs to investigate pain and paresthesia in the limbs. The right and left median motor nerves showed prolonged distal latencies with low motor amplitudes. The examiner explained that the Veteran had been diagnosed with moderate to severe bilateral carpal tunnel syndrome affecting the right side more than the left side, and that the remainder of the nerve conduction studies in the upper extremities were normal. The examiner further explained that nerve conduction studies in the legs showed evidence of a chronic axonal sensorimotor polyneuropathy consistent with mild to moderate diabetic polyneuropathy. A superimposed radiculopathy could not be determined. Following a review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s carpal tunnel syndrome in his upper extremities is related to his service-connected diabetes mellitus. The reasons follow. Notably, the only evidence that the Veteran’s current carpal tunnel syndrome is related to his service-connected diabetes mellitus is lay statements. The Veteran is competent to report that he is experiencing pain in his upper extremities. However, to the extent that the statements assert a nexus between the Veteran’s current carpal tunnel syndrome and his service-connected diabetes mellitus, such statements are afforded no probative value, as the Veteran has not been shown to possess the expertise necessary to render a nexus opinion regarding the etiology of his carpal tunnel syndrome. Furthermore, the Veteran’s statements that his carpal tunnel syndrome is related to his service-connected diabetes mellitus are outweighed by the January 2014 opinion of the VA examiner, who opined that while the Veteran reports some symptoms consistent with peripheral neuropathy and has a current diagnosis of diabetes mellitus, there is no objective evidence of diabetic peripheral neuropathy. Furthermore, in a May 2016 private examination, the medical professional opined that the Veteran did not have upper extremity diabetic peripheral neuropathy, but rather had been diagnosed with moderate to severe bilateral carpal tunnel syndrome affecting the right side more than the left side, and that the remainder of the nerve conduction studies in his upper extremities was normal. This tends to show that the Veteran’s carpal tunnel syndrome is not considered diabetic peripheral neuropathy and is not related to his service-connected diabetes mellitus. The examiner was clearly evaluating the Veteran for peripheral neuropathy of the upper extremities related to diabetes mellitus and found that the Veteran did not have it. The Board is aware of the cursory conclusions by some medical professionals that the Veteran has peripheral neuropathy of the upper extremities due to diabetes mellitus; however, these medical professionals did not provide a rationale for the conclusion. The May 2016 EMG shows that the Veteran had bilateral carpal tunnel syndrome but did not have peripheral neuropathy associated with diabetes. The testing results showed he had peripheral neuropathy in the lower extremities associated with diabetes mellitus, but other than carpal tunnel syndrome, testing in the upper extremities was normal. The May 2016 DBQ examiner specifically concluded that the Veteran did not have a bilateral upper extremity diabetic neuropathy. The Board accords more probative value to objective testing than conclusory statements that are not supported by an explanation for the conclusion. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for peripheral neuropathy of the upper extremities, to include as a complication of diabetes mellitus. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Caruso, Associate Counsel