Citation Nr: 18151925 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-38 358 DATE: November 20, 2018 ORDER An earlier effective date of August 17, 2016, but no earlier, for the grant of service connection of peripheral (sciatic) neuropathy of the left lower extremity, is granted. An earlier effective date of August 17, 2016, but no earlier, for the grant of service connection of peripheral (femoral) neuropathy of the left lower extremity, is granted. An earlier effective date of August 17, 2016, but no earlier, for the grant of service connection of peripheral (sciatic) neuropathy of the right lower extremity, is granted. An earlier effective date of August 17, 2016, but no earlier, for the grant of service connection of peripheral (femoral) neuropathy of the right lower extremity, is granted. Prior to October 11, 2017, a rating higher than 20 percent for peripheral (sciatic) neuropathy of the left lower extremity, is denied. Prior to October 11, 2017, a rating higher than 20 percent for peripheral (femoral) neuropathy of the left lower extremity, is denied. Prior to October 11, 2017, a rating higher than 20 percent for peripheral (sciatic) neuropathy of the right lower extremity, is denied. Prior to October 11, 2017, a rating higher than 20 percent for peripheral (femoral) neuropathy of the right lower extremity, is denied. REMANDED The issue of entitlement to an initial rating higher than 50 percent for a depressive disorder is remanded. The issue of entitlement to a rating higher than 20 percent for diabetes mellitus is remanded. The issue of entitlement to a separate compensable rating for erectile dysfunction is remanded. The issue of entitlement to a separate compensable rating for hypertension is remanded. The issue of entitlement to a rating higher than 40 percent for peripheral (sciatic) neuropathy of the left lower extremity for the period from October 11, 2017, is remanded. The issue of entitlement to a rating higher than 20 percent for peripheral (femoral) neuropathy of the left lower extremity for the period from October 11, 2017, is remanded. The issue of entitlement to a rating higher than 20 percent for peripheral (sciatic) neuropathy of the right lower extremity for the period from October 11, 2017, is remanded. The issue of entitlement to a rating higher than 20 percent for peripheral (femoral) neuropathy of the right lower extremity for the period from October 11, 2017, is remanded. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A formal claim for separate ratings for neuropathy of the left and right lower extremities was received in July 2017; however, claims for separate ratings for diabetic peripheral neuropathy were constructively received by VA at the same time as his April 2015 claim for an increased rating for diabetes mellitus. 2. Entitlement to service connection for diabetic peripheral neuropathy of the lower extremities arose on August 17, 2016, when the condition was first diagnosed. 3. Prior to October 11, 2017, the Veteran’s bilateral lower extremity sciatic nerve neuropathy and femoral nerve neuropathy disabilities were consistent with no more than moderate incomplete paralysis of the respect nerves; moderately-severe or severe incomplete paralysis was not shown. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 17, 2016, but not earlier, for the grant of service connection of peripheral (sciatic) neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date of August 17, 2016, but not earlier, for the grant of service connection of peripheral (femoral) neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date of August 17, 2016, but not earlier, for the grant of service connection of peripheral (femoral) neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an effective date of August 17, 2016, but not earlier, for the grant of service connection of peripheral (sciatic) neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. For the period prior to October 11, 2017, the criteria for a rating higher than 20 percent for peripheral (sciatic) neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Codes 8520, 8526. 6. For the period prior to October 11, 2017, the criteria for a rating higher than 20 percent for peripheral (femoral) neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Codes 8520, 8526. 7. For the period prior to October 11, 2017, the criteria for a rating higher than 20 percent for peripheral (sciatic) neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Codes 8520, 8526. 8. For the period prior to October 11, 2017, the criteria for a rating higher than 20 percent for peripheral (femoral) neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Codes 8520, 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2015, May 2016, September 2016, and September 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Effective Dates Except as otherwise provided, the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of increased compensation will be the earliest date on which it is factually ascertainable that an increase in disability had occurred, provided a claim for increase is received within 1 year from such date; otherwise, the effective date will be the date of VA receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a),(b)(3); 38 C.F.R. § 3.400(o). In this case, the RO assigned a July 28, 2017, effective date for the grants of service connection for diabetic neuropathy of the right and left lower extremities, based on the date of receipt of the Veteran’s claim for service connection for peripheral neuropathy of the lower extremities secondary to diabetes mellitus. However, entitlement to an effective date earlier than July 28, 2017, for the grants of neuropathy of the lower extremities is considered part and parcel of the Veteran’s diabetes mellitus increased rating appeal, as the rating criteria for the diabetes mellitus require consideration of separately compensable complications of diabetes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The question, then, is which of the applicable effective dates should apply. Here, while the Veteran’s diabetes increased rating claim on appeal was filed in April 2015, the Board finds that, August 17, 2016, is the appropriate effective date for the awards of 20 percent ratings for femoral and sciatic neuropathies of the left and right lower extremities. This is so because that is the date on which entitlement arose. In this regard, on August 17, 2016, the Veteran presented to VA with complaints first assessed as neuropathy. At that time, he complained that his legs and feet felt numb and cold. Though sensation was intact, the assessment was neuropathy and the Veteran was prescribed Gabapentin. An August 2017, a VA examiner subsequently confirmed peripheral neuropathy of the lower extremities due to diabetes. Prior to August 17, 2016, the record is silent for a diagnosis of neuropathy or medication prescribed for neuropathic symptoms, despite the Veteran’s report to the August 2017 VA examiner of an onset “a few years ago.” The Board is cognizant that prior to August 17, 2016, at times, the Veteran offered periodic complaints related to his lower extremities, including complaints of foot pain in November 2012, and numbness and/or tingling in his feet in May 2014 and May 2015. There was also a finding of diminished sensation in November 2012, as well as in May 2015, at which time the Veteran was confined to a hospital bed following surgery. Nevertheless, the Veteran had a variety of conditions affecting his lower extremities, including arthritis, gout, and metatarsalgia, and none of the previously-reported symptoms were diagnosed as or attributed to diabetic neuropathy prior to August 17, 2016. The Veteran also affirmatively denied numbness in his extremities in August 2013, reported in August 2014 that the tingling in his feet was better, and, was also found in May 2015 to have no impairment in sensory perception, generally. Importantly, VA examiners in July 2015 and April 2016 did not note neuropathy as a complication of the Veteran’s diabetes mellitus, and a VA physician who completed a Diabetes Mellitus Disability Benefits Questionnaire on behalf of the Veteran in February 2016 similarly and affirmatively noted that the Veteran did not have diabetic peripheral neuropathy. For the foregoing reasons, even considering the positive evidence dated prior to August 17, 2016, the Board finds that an earlier effective date is not warranted, as entitlement did not arise prior to that date. As noted, regulations provide that the proper effective date is the later of the date of claim or date entitlement arose. Here, the Veteran’s claim was received prior to the date entitlement arose. As such, the August 17, 2016, date on which entitlement arose is the proper and earliest assignable effective date for the grants of service connection for peripheral neuropathy of the right and left lower extremities. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Increased Ratings for Peripheral Neuropathy Prior to October 11, 2017 The Veteran seeks higher ratings for his diabetic neuropathy affecting his lower extremities. His right lower extremity neuropathy is currently rated as 20 percent disabling for femoral nerve involvement, and 20 percent disabling for sciatic nerve involvement. His left lower extremity neuropathy is rated as 20 percent disabling for femoral nerve involvement; 20 percent disabling for sciatic involvement for the period prior to October 11, 2017; and, 40 percent disabling for sciatic involvement for the period from October 11, 2017. Following a review of the record, the Board finds that higher ratings are not warranted for the period prior to October 11, 2017, as the record does not support more than moderate incomplete paralysis. The issues of entitlement to higher ratings for the period from October 11, 2017, are addressed in the Remand portion below. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Diagnostic Codes 8526, 8626, and 8726 provide ratings for paralysis, neuritis, and neuralgia of the femoral nerve. Neuritis and neuralgia are rated as incomplete paralysis. As is relevant here, disability ratings of 20 percent and 40 percent are warranted, respectively, for moderate and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. For the femoral nerve, relevant disability ratings of 20 percent and 40 percent are respectively warranted for moderate and severe incomplete paralysis of the femoral nerve. Id. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. For the period prior to October 11, 2017, the Board does not find that the Veteran is entitled to ratings in excess of the 20 percent assigned for his bilateral lower extremity sciatic and femoral neuropathies. In that regard, August 2017 and October 2017 VA examiners expressly found the Veteran’s overall lower extremity neuropathic disability picture to be consistent with mild incomplete paralysis for both the left and right lower extremities, for each the sciatic and femoral nerve. The August 2017 examiner noted the Veteran’s subjective reports of mild intermittent pain, mild paresthesias and/or dysthesias, and mild numbness, bilaterally, and examination of the lower extremities revealed bilateral decreased reflexes, light touch sensation, and vibration sensation. Nevertheless, motor strength and position sensation were normal, and there was no evidence of atrophy, constant pain, or neuropathic symptoms that were more than mild in nature. The October 2017 VA examiner noted the Veteran’s report of some moderate or severe symptoms, including severe intermittent pain and moderate paresthesias in the bilateral lower extremity, and found absent reflexes in the left ankle and knee, and absent vibration sensation bilaterally, consistent with more moderate disability, though s/he somehow concluded that the overall disability picture at that point was still one of mild incomplete paralysis. Nevertheless, with the exception of the left ankle in dorsiflexion, the Veteran exhibited full motor strength throughout, had normal light touch sensation at the knees/thighs, and decreased but present light touch sensation at the ankle/lower legs and feet/toes, and cold sensation. There was also no atrophy. The Veteran’s symptoms during the relevant period on appeal as shown by the clinical evidence also do not suggest that such characterization of his neuropathy was inappropriate or that moderately-severe or severe neuropathy was more nearly approximated at any point prior to October 11, 2017. In this regard, the clinical evidence shows few neuropathic complaints or objective findings, and prescription of medication for neuropathy for only a small part of the period on appeal. For example, in August 2016, while the Veteran complained of neuropathic symptoms including numbness and tingling, objectively, monofilament sensation and vibratory sensation were intact, and no other objective neurologic findings were noted. The relevant record is otherwise essentially silent for complaints or findings related to neuropathy of the lower extremities. Indeed, more recent treatment records dating through October 2017 show that the Veteran’s Gabapentin, initially prescribed in August 2016 to treat his neuropathy symptoms, expired in October 2016, and there is no evidence that it was refilled or renewed since that time. Though the Veteran reported to a VA examiner that he was getting no benefit from the Gabapentin, the record shows that, regardless, neither did he seek much treatment or alternative medication for his neuropathic symptoms prior to October 11, 2017, which tends to weigh against a finding of more than moderate severity. In summary, the Board finds that the preponderance of the evidence weighs against findings of more than moderate neuropathic disability in the right or left lower extremity involving either the femoral or sciatic nerve prior to October 11, 2017. As such, higher ratings than the currently-assigned 20 percent ratings for the sciatic and femoral nerve neuropathy of the right and left lower extremities for the period prior to October 11, 2017, are not warranted. REASONS FOR REMAND 1. The issue of entitlement to an increased rating for a depressive disorder is remanded. Although the Veteran was examined in July 2016 for his depressive disorder, that examination was for purposes of service connection and the examiner did not adequately address the functional impact of the Veteran’ psychiatric symptoms on his occupational functioning. Such is necessary to adequately address the TDIU claim raised by the record. Additionally, the Board notes that the Veteran’s depressive disorder is secondary to his service-connected prostate cancer and diabetes. Since the last psychiatric examination, the record shows that the prostate cancer metastasized to the Veteran’s pelvis (for which he has been service connected), and he was observed to be irritable during VA treatment in August 2018. Such evidence suggests that his overall psychiatric condition may have worsened. Given the foregoing, the Board finds that the Veteran should be provided a new examination. Updated treatment records should be obtained on remand. 2. The issue of entitlement to an increased rating for diabetes with hypertension and erectile dysfunction is remanded. The Board finds that the Veteran should be provided a new examination related to his diabetes mellitus and associated complications, as the evidence since the Veteran was last examined in September 2016 suggests his condition may have worsened. In this regard, in August 2018, it was noted that the Veteran’s insulin was increased six months prior, and more escalation in the Veteran’s insulin was recommended, supporting a worsening condition. Additionally, related to associated erectile dysfunction, the Board observes that in August 2017, the Veteran reported continuing problems despite medication, and on the most recent examination in April 2016, the Veteran declined physical examination, which is necessary to determine if there is deformity present. (The Court of Appeals for Veterans Claims recently defined “deformity” of the penis as “a distortion of the penis, either internal or external.” Williams v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1037, *10). As such, the Board finds that new examinations are necessary. Additionally, as the Veteran has raised the issue of entitlement to a TDIU due to his service-connected disabilities, the Board finds that a new hypertension examination should also be provided to determine its current severity and any impact it has on occupational functioning. Parenthetically, the Board acknowledges that a VA physician submitted a February 2016 report in support of a higher rating for diabetes mellitus, suggesting that the Veteran’s diabetes required regulation of activities, namely, that the Veteran should avoid situations and occupations that exposed him to “heat stress.” However, there is no indication that such avoidance was required by diabetes to avoid hypoglycemic episodes as, the Board points out, the Veteran reported as recently as 2014 working summers on a golf course as a greenskeeper or groundskeeper, mowing lawns, work that presumably exposed him to heat stress. However, there is no evidence of hypoglycemic episodes associated with that work, or generally in the record. Indeed, the record also suggests that the Veteran was encouraged to exercise to control his diabetes. And, even when the Veteran presented to VA for reported “hypoglycemia” in August 2012, his blood sugar levels were reported as 196 mg/dL and 303 mg/dL. Thus, neither the subjective nor objective evidence of record is entirely consistent with the physician’s determination regarding regulation of activities, and two subsequent VA examiners found that regulation of activities was not required. As such, the Board finds that the February 2016 report, alone, is insufficient to grant a higher rating for diabetes mellitus at this time. 3. The issues of entitlement to increased ratings for peripheral neuropathy of the left and right lower extremities for the period from October 11, 2017, are remanded. The Board finds that prior to adjudication of the Veteran’s increased rating claims for peripheral neuropathy of the lower extremities for the period from October 11, 2017, he should be afforded a new VA examination. While the October 2017 VA examination was relatively recent, the Board finds that the examiner’s conclusion that the Veteran’s overall lower extremity disabilities related to peripheral neuropathy were consistent with mild incomplete paralysis of the bilateral femoral and sciatic nerves, without further explanation, to be somewhat inconsistent with the remainder of the examination report, particularly in light of the severity of some of the Veteran’s more severe subjective complaints and the objective findings related to absent reflexes, sensation, and even decreased motor strength in the left ankle dorsiflexion. Thus, the Board finds that a new examination should be provided. 4. The issue of entitlement to a TDIU is remanded. As the Veteran’s pending increased rating claims may affect the outcome of the claim of entitlement to a TDIU, a decision on that issue would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Thus, that claim is also being remanded. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. After the development requested in item 1 has been completed to the extent possible, schedule the Veteran for VA examinations to determine the current severity of his service-connected depressive disorder, diabetes mellitus, hypertension, erectile dysfunction, and peripheral neuropathy of the lower extremities. The claims file must be reviewed in conjunction with the examinations. All tests deemed necessary should be conducted and the results reported. All objective and subjective symptoms should be described in detail. Each examiner should also provide an opinion, as appropriate, regarding the extent of the functional impairment caused by the Veteran’s service-connected disabilities. With respect to the Veteran’s erectile dysfunction, the examiner should opine as to whether the Veteran’s erectile dysfunction constitutes or produces a distortion of the penis, either internal or external? Please provide a full and complete explanation for this opinion. The opinion should otherwise include an evaluation of the limitations and restrictions imposed by the relevant disability on such routine work activities as interacting with coworkers; sitting, standing, and walking; and lifting, carrying, pushing, and pulling. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal, including entitlement to a TDIU. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his attorney and afford them an opportunity to respond. Then, return the case to the Board, if in order. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel