Citation Nr: 18151932 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 08-04 494 DATE: November 20, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with erectile dysfunction is denied. Entitlement to an initial rating of 30 percent prior to June 21, 2007, and 40 percent from June 21, 2007 for peripheral neuropathy of the right upper extremity is granted. Entitlement to an initial rating of 30 percent for peripheral neuropathy of the left upper extremity is granted. REMANDED Entitlement to service connection for an eye disability is remanded. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran’s diabetes mellitus required the use of insulin and a restricted diet; regulation of activities has not been shown. 2. Prior to June 21, 2007, the Veteran’s peripheral neuropathy of the right upper extremity was manifested by moderate incomplete paralysis of the median nerve. 3. From June 21, 2007, the Veteran’s peripheral neuropathy of the right upper extremity has been manifested by moderate incomplete paralysis of the lower radicular group. 4. From June 21, 2007, the Veteran’s peripheral neuropathy of the left upper extremity has been manifested by moderate incomplete paralysis of the lower radicular group. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.119, Diagnostic Code 7913. 2. The criteria for a 30 percent rating for peripheral neuropathy of the right upper extremity from March 10, 2006 to June 20, 2007 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8515. 3. The criteria for a 40 percent rating for peripheral neuropathy of the right upper extremity from June 21, 2007 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8512. 4. The criteria for a 30 percent rating for peripheral neuropathy of the left upper extremity from June 21, 2007 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to September 1971. This case comes to the Board of Veterans’ Appeals (Board) from July 2006 and November 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In October 2009, April 2017, and January 2018 the Board remanded the claims on appeal for further development. When the case was previously before the Board, the Veteran’s service connection claims involving the eyes were listed as two separate issues, service connection for refractive error and blepharitis, and service connection for senile cataracts. As the issues all involve claims of vision loss, the Board has combined the issue into one and recharacterized the issue as entitlement to service connection for an eye disability. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C. § 1155. Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with erectile dysfunction The Veteran’s diabetes mellitus has been rated 20 percent from March 2006 under 38 C.F.R. § 4.119, Diagnostic Code 7913, the code for evaluation of diabetes mellitus. (He is also in receipt of special monthly compensation for loss of use of a creative organ due to his erectile dysfunction.) Under this code, a 20 percent rating is assigned if diabetes requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned if diabetes requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned if this condition requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned if this condition requires 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. Id. The following notes apply to 38 C.F.R. § 4.119, Diagnostic Code 7913. Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. Id. A May 2006 VA examination noted that the Veteran’s diabetes mellitus was treated with oral hypoglycemic agent and restricted diet. There was no regulation of activities and no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. On VA examination in October 2008 the Veteran reported that he experienced hypoglycemic reactions while working as a mechanic or while performing exercise, and that these required him to take glucose pills. He took oral hypoglycemic agents. He visited his diabetic care provider every three months. A November 2011 VA examination noted that the Veteran’s diabetes mellitus was treated with oral hypoglycemic agent and restricted diet. There was no regulation of activities and no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. A May 2017 VA examination noted that the Veteran’s diabetes mellitus was treated with oral hypoglycemic agent and insulin. There was no regulation of activities and no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. He visited his diabetic care provider less than two times per month. An evaluation in excess of 20 percent is not warranted because the evidence does not show the service-connected diabetes mellitus required regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (medical evidence is required to support the “regulation of activities” criterion). As noted above, in October 2008 the Veteran was reported to exercise. The May 2006, November 2011 and May 2017 VA examinations specifically noted that regulation of activities was not warranted. The October 2008 examiner noted that the Veteran reported that he experienced hypoglycemic reactions while working as a mechanic or while performing exercise; the Board finds that this does not constitute regulation of activities. Without a showing of “regulation of activities,” a rating in excess of 20 percent is not warranted because the criteria are conjunctive in nature. See Camacho, 21 Vet. App. at 366. 2. Entitlement to higher initial ratings for right upper extremity peripheral neuropathy 3. Entitlement to a higher initial rating for left upper extremity peripheral neuropathy The Veteran’s right and left upper extremity peripheral neuropathy have been rated pursuant to DC 8515. That Code section affords a 10 percent evaluation for incomplete, mild paralysis of the median nerve of either arm. A 20 percent rating is warranted where the evidence demonstrates incomplete, moderate paralysis of the minor arm. A 30 percent rating applies for incomplete, moderate paralysis of the major arm. Ratings of 40 and 50 percent apply for incomplete, severe paralysis of the minor and major extremities respectively. Finally, 60 and 70 percent ratings apply for complete paralysis of the minor and major extremities respectively. 38 C.F.R. § 4.124a, DC 8515. The Note following 38 C.F.R. § 4.124a, DC 8719 indicates that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, to consider radicular group ratings. Diagnostic Code 8512 provides that mild incomplete paralysis of the lower radicular group is rated as 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8512. The medical record indicates that the Veteran is right-handed. On a May 2006 VA examination, the examiner noted symptoms of peripheral neuropathy in the upper extremities. No sensorimotor deficit was present. There was good grip and pincer grasp function and normal tone. There were no involuntary movements, atrophy or fasciculations. The Veteran perceived pinprick, touch, position, and vibration sense in a normal pattern. The deep tendinous reflexes were hypoactive in the upper extremities, rated +1. A May 2006 nerve conduction study showed findings compatible with moderate right carpal tunnel syndrome. There was increased latency for right median nerve motor branch, with low amplitude; and slowing, increased latency for right median nerve sensory branch, distally and mostly across the carpal tunnel. The right ulnar nerve showed normal nerve conduction. Left upper extremity findings were also normal. A June 21, 2007 nerve conduction study showed abnormal findings suggestive of mostly upper extremities sensory mixed type (axonal and demyelinating) neuropathy. Both ulnar and left median nerves showed normal distal latencies, amplitudes and velocities. Right median nerve showed normal distal latency, normal amplitude, and slowed velocity. Both median and left ulnar nerve showed normal latencies, normal amplitudes, and slowed velocities. Right ulnar nerve showed normal latency, low amplitude, and normal velocity. On VA examination conducted October 3, 2008, the Veteran complained of cramps, numbness, and paresthesias of the hands, weakness, and tremors. On examination, left and right upper extremity muscle strength was normal. Left and right upper extremity sensory function was normal. Reflexes were noted as zero in the upper extremities. There were gross tremors of the upper extremities. The examiner noted that all upper extremities nerves were involved. On VA examination in November 2011, the examiner noted moderate constant pain, numbness, and paresthesias in both upper extremities. Muscle strength, including grip and pinch was normal in both upper extremities. Deep tendon reflexes were 2+ bilaterally in the upper extremities. Light touch testing was decreased in the forearms and hands/fingers of both upper extremities. Cold sensation was normal and there was no muscle atrophy. In a January 2012 addendum report, the examiner stated that the Veteran’s peripheral neuropathy in both upper extremities was of moderate severity: “The Veteran has a purely sensory neuropathy. There is no motor involvement.” On VA examination in May 2017, the examiner noted moderate constant pain in the right upper extremity and mild constant pain in the left upper extremity. There was moderate numbness and paresthesias in both upper extremities. Muscle strength, including grip and pinch was normal in both upper extremities. Deep tendon reflexes were absent bilaterally in the upper extremities. Light touch testing was normal in both forearms and decreased in the hands/fingers of both upper extremities. Position sense and vibratory sensation were decreased bilaterally. There was no muscle atrophy. The examiner noted mild incomplete paralysis of the median and ulnar nerves bilaterally. Right Upper Extremity For the appeals period prior to June 21, 2007, a 30 percent rating is warranted under DC 8515 for moderate incomplete paralysis of the median nerve. The May 2006 VA examiner noted moderate carpal tunnel syndrome, and the May 2006 nerve conduction study showed median nerve involvement. There is no basis for assigning a higher rating, as severe incomplete paralysis is not shown, and no involvement of other nerves of the right upper extremity is demonstrated. As of June 21, 2007, a 40 percent is rating is warranted for moderate incomplete paralysis of the lower radicular group affecting the major extremity. 38 C.F.R. § 4.124a, DC 8512. The Board finds it is more appropriate to assign a rating under Code 8512 for paralysis of the lower radicular group as the October 2008 examiner noted that all upper extremity nerves were involved. See Butts v. Brown, 5 Vet. App. 532 (1993). The June 21, 2007 nerve conduction study shows abnormalities of the ulnar and median nerve. The October 2008 examiner noted that all upper extremity nerves were involved, the November 2011 examiner noted moderate peripheral neuropathy in the upper extremities, and the May 2017 examiner noted mild incomplete paralysis of the median and ulnar nerves. The Board finds that the evidence supports a finding that moderate incomplete paralysis of the lower radicular group of the right upper extremity has been demonstrated since June 21, 2007. There is no basis for a finding of severe incomplete paralysis as the examiners have specified that the neuropathy is purely sensory, with no motor involvement. Separate ratings are not in order as they precluded by the note in 38 C.F.R. § 4.124a that bars separate ratings for upper extremity peripheral nerve disabilities that involve multiple nerves. Additionally, even in the absence of the note in 38 C.F.R. § 4.124a, separate ratings cannot be assigned as the symptomatology associated with the Veteran’s disability was not shown by the evidentiary record to be separate and distinct. The symptomatology, such as the pain and numbness, is overlapping and duplicative. 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. Therefore, a 30 percent rating under Diagnostic Code 8515 should be assigned from March 10, 2006 to June 20, 2007 for moderate incomplete paralysis of the median nerve. A 40 percent rating under Diagnostic Code 8512 for moderate incomplete paralysis of the major lower radicular group should be assigned from June 21, 2007. 38 C.F.R. § 4.7. Left Upper Extremity For the entire appeals period beginning June 21, 2007, a 30 percent is rating is warranted for moderate incomplete paralysis of the lower radicular group affecting the minor extremity. 38 C.F.R. § 4.124a, DC 8512. As noted, the Board finds it is more appropriate to assign a rating under Code 8512 for paralysis of the lower radicular group for reasons previously stated. The June 21, 2007 nerve conduction study found abnormalities of the ulnar and median nerve. The October 2008 examiner noted that all upper extremity nerves were involved, the November 2011 examiner noted moderate peripheral neuropathy in the upper extremities, and the May 2017 examiner noted mild incomplete paralysis of the median and ulnar nerves. The Board finds that the evidence supports a finding that moderate incomplete paralysis of the lower radicular group of the left upper extremity has been demonstrated since June 21, 2007. There is no basis for a finding of severe incomplete paralysis as the examiners have specified that the neuropathy is purely sensory, with no motor involvement. Separate ratings are not in order as they precluded by the note in 38 C.F.R. § 4.124a that bars separate ratings for upper extremity peripheral nerve disabilities that involve multiple nerves. Additionally, that even in the absence of the note in 38 C.F.R. § 4.124a, separate ratings cannot be assigned as the symptomatology associated with the Veteran’s disability was not shown by the evidentiary record to be separate and distinct. The symptomatology, such as the pain and numbness, is overlapping and duplicative. 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. Therefore, a 30 percent rating Diagnostic Code 8512 for moderate incomplete paralysis of the minor lower radicular group should be assigned from June 21, 2007. 38 C.F.R. § 4.7. REASONS FOR REMAND 1. Entitlement to service connection for an eye disability is remanded. In May 2006, the Veteran was afforded a VA eye examination in connection with his claim for service connection for an eye disability, to include refractive error, blepharitis, and senile cataracts. He complained of burning ocular sensation and occasional itching, but denied ocular pain. The May 2006 VA examiner noted diagnoses of refractive error, blepharitis, and incipient senile cataracts with good corrected visual acuity. The examiner provided an opinion that the Veteran’s loss of vision is caused by or a result of his refractive error and symptoms of the blepharitis. The examiner also opined that the loss of vision, including cataracts, is not caused by or a result of diabetes mellitus, type II. In April 2017, the Board found this medical opinion inadequate, because it did not address the relationship between the Veteran’s eye conditions to service, and remanded the issue for further development. Pursuant to the Board’s remand, in May 2017 the Veteran was afforded another VA eye examination. In the May 2017 examination report and an October 2017 addendum, the examiner addressed the etiology of the Veteran’s refractive error and cataracts. However, the examiner did not address the etiology of the blepharitis that had been noted on the May 2006 examination. Consequently, a supplemental medical opinion is required to adequately address the etiology of the blepharitis, to include whether it was related to service and whether it was secondary to service-connected diabetes mellitus. The matter is REMANDED for the following action: Obtain from the VA examiner who conducted the May 2017 eye examination, an addendum opinion addressing the following: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s blepharitis, diagnosed on VA examination in May 2006 had its onset during his active duty service or is otherwise related to his military service. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s blepharitis was proximately caused by, or permanently aggravated by, his service-connected diabetes mellitus, type II. Aggravation exists when there is an increase in disability during such service that is not due to the natural progress of the disease. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as opposed to symptoms, is worsened. (Continued on the next page)   A complete rationale must be provided for any opinion stated. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel