Citation Nr: 18153388 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 13-03 665A DATE: November 27, 2018 ORDER An initial rating of more than 40 percent from November 1, 2008 and continuing thereafter for the Veteran’s service-connected left leg peripheral vascular disease, status-post femoral bypass surgery is denied. An increased rating of more than 20 percent from August 20, 2011 and continuing thereafter for the Veteran’s service-connected diabetes mellitus type II (DM) is denied. An increased rating of more than 20 percent from August 20, 2011 and continuing thereafter for the Veteran’s service-connected left lower extremity peripheral neuropathy is denied. An increased rating of more than 10 percent from August 20, 2011 and continuing thereafter for the Veteran’s service-connected right lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. For the entirety of the rating period on appeal, the Veteran experienced, at worst, claudication on walking between 25 to 50 yards on a level grade at 2 miles per hour; an ABI, at worst, of 0.8 and persistent coldness. 2. For the entirety of the rating period on appeal, the Veteran was required to use insulin and abide by a restricted diet, but was not required to regulate his activities. 3. For the entirety of the rating period on appeal, the Veteran’s disability picture for his left lower extremity peripheral neuropathy more nearly approximates moderate incomplete paralysis. 4. For the entirety of the rating period on appeal, the Veteran’s disability picture for his right lower extremity peripheral neuropathy more nearly approximates mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria to establish an initial rating more than 40 percent for the entirety of the rating period on appeal have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code (DC) 7114 (2017). 2. The criteria to establish an increased rating more than 20 percent for the entirety of the rating period on appeal have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.119, DC 7913 (2017). 3. The criteria to establish an increased rating more than 20 percent for the entirety of the rating period on appeal for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.6, 4.27, 4.120, 4.124a, DC 8620 (2017). 4. The criteria to establish an increased rating more than 10 percent for the entirety of the rating period on appeal for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.6, 4.27, 4.120, 4.124a, DC 8620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1967 to July 1969, including service in the Republic of Vietnam. Effective August 2010, the Veteran is in receipt of a 100 percent schedular evaluation. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 and November 2010 rating decision of the Portland, Oregon Regional Office (RO). In June 2015, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In December 2015, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Special monthly compensation under 38 C.F.R. § 3.350(i) (2017) was in effect from September 26, 2008 to November 1, 2008. Special monthly compensation under 38 C.F.R. § 3.350(a), (i) (2017) is in effect from May 6, 2004 and August 20, 2010, respectively. Increased Ratings Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Left leg peripheral vascular disease status-post femoral bypass surgery The Veteran is rated 40 percent disabling from November 1, 2008 and continuing thereafter for his left leg peripheral vascular disease status-post femoral bypass surgery under DC 7114. Under DC 7114, a 40 percent rating is warranted for arteriosclerosis obliterans resulting in claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or an ankle/brachial index (ABI) of 0.7 or less. 38 C.F.R. § 4.104, DC 7114 (2017). A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or an ABI of 0.5 or less. Id. A 100 percent rating is warranted for ischemic limb pain at rest, and either deep ischemic ulcers or an ABI of 0.4 or less. Id. The notes associated with DC 7114 are: (1): the ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure (the normal index is 1.0 or greater); (2) evaluate residuals of aortic and large arterial bypass surgery or arterial graft as arteriosclerosis obliterans; and (3) these evaluations are for involvement of a single extremity; if more than one extremity is affected, evaluate each extremity separately and combine (under § 4.25) using the bilateral factor (§ 4.26), if applicable. 38 C.F.R. § 4.104, Diagnostic Code 7114 (2017). In the January 2009 VA examination, it was noted that the Veteran underwent femoral bypass surgery in September 2008. Since the surgery, the Veteran reported that his symptoms had improved but he continued to experience left foot pain exacerbated with standing or walking. The Veteran also reported that he could walk 100 yards without experiencing claudication. A physical examination of the left leg revealed no redness, warmth or ischemia. The skin on the Veteran’s left leg was normal. In addition, there were no sores, lesions or other findings. In an October 2009 addendum to the January 2009 VA examination, the Veteran reported experiencing left leg pain exacerbated with walking. He also reported being able to walk 100 yards and stand for 20 minutes until he must rest due to his left leg pain. The examiner observed that the Veteran was short of breath while he walked around the examination room. A physical examination revealed that the Veteran’s left leg had dry skin but had no other significant trophic changes. In his November 2009 notice of disagreement, the Veteran reported experiencing left leg pain and coldness. In a September 2010 VA examination that did not focus on his peripheral vascular disease, the Veteran reported experiencing left leg coldness. The examiner indicated that the Veteran had trophic changes to his left leg manifested by thin skin, absent hair and dystrophic nails. In June 2012, the Veteran was afforded a VA examination. The Veteran reported experiencing decreased sensation in his left leg and trouble with endurance while weight-bearing. The examiner indicated that the Veteran experiences claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour. It was also noted that the Veteran experiences persistent coldness and diminished peripheral pulses. The Veteran’s most recent left leg ABI was 0.97 on December 2011. In his June 2015 Board hearing, the Veteran testified experiencing left leg coldness and pain. He also testified being able to walk 25 to 50 yards before having to rest. In August 2016, the Veteran was afforded another VA examination. The Veteran reported an improvement in his peripheral vascular disease and denied experiencing claudication and left leg pain. The examiner indicated that the Veteran’s most recent ABI was 0.8 on July 2016. The examiner noted that the Veteran reported an improvement in his peripheral vascular disease and symptoms relating to claudication had resolved. A preponderance of the evidence is against a finding of an initial rating more than 40 percent for the entirety of the rating period on appeal under DC 7114. At worst, the Veteran experiences claudication on walking between 25 to 50 yards on a level grade at 2 miles per hour. In addition, the Veteran’s ABI, at worst, was 0.8. Although the Veteran experiences persistent coldness, a 60 percent rating under DC 7114 requires claudication on walking less than 25 yards and persistent coldness or an ABI of 0.5 or less. Therefore, an initial rating more than 40 percent is not warranted and the claim is denied. Diabetes mellitus type II The Veteran is rated 20 percent disabling for DM. The rating period on appeal is from August 20, 2010, the receipt date of the Veteran’s increased rating claim. Under DC 7913, a 20 percent rating is warranted where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. 38 C.F.R. § 4.119, DC 7913 (2017). A 40 percent rating is warranted where insulin, restricted diet, and regulation of activities is required. Id. A 60 percent rating is warranted for 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 a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Id. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations 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. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Non-compensable complications are considered part of the diabetic process under DC 7913. Id. In September 2010, the Veteran was afforded a VA examination. The Veteran reported having treated his DM with oral prescription medication. It was noted that the Veteran had no history of DM-related hospitalization or surgery. The examiner indicated that the Veteran has not experienced episodes of hypoglycemic reactions or ketoacidosis. The Veteran was not instructed to follow a restricted or special diet nor was he restricted in his ability to perform strenuous activities. In June 2012, the Veteran was afforded another VA examination. The Veteran treats his DM with prescribed oral hypoglycemic agents and follows a restricted diet. It was noted that the Veteran does not require regulation of activities as part of his treatment plan for DM. The Veteran visits his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. The Veteran has had no hospitalizations within the past 12 months for episodes of ketoacidosis or hypoglycemic reactions and no progressive unintentional weight loss or loss of strength attributable to his DM. In his June 2015 Board hearing, the Veteran testified having been prescribed insulin 1 year previously and that he was instructed by his medical care provider to eat properly and exercise. The Veteran also testified that he can only eat certain foods and that insulin was his main medication for his DM. In August 2016, the Veteran was afforded a VA examination. The Veteran treats his DM by adhering to a restricted diet, taking prescribed oral hypoglycemic agents and injecting insulin one time per day. It was noted that the Veteran does not require regulation of activities to treat his DM. It was also noted that the Veteran visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. The Veteran has had no hospitalizations in the past 12 months for episodes of ketoacidosis or hypoglycemic reactions and no progressive unintentional weight loss or loss of strength attributable to his DM. A preponderance of the evidence is against a finding of an increased rating more than 20 percent for the entirety of the rating period on appeal. In the September 2010 VA examination, the Veteran was not required to abide by a restricted diet or regulate his activities. In the June 2012 and August 2016 VA examination, the Veteran was required to abide by a restricted diet but was not required to regulate his activities. A 40 percent rating under DC 7913 requires treatment with insulin, restricted diet and regulation of activities. Therefore, an increased rating more than 20 percent is not warranted and the claim is denied. Left and right lower extremity peripheral neuropathy The Veteran is rated 10 percent disabling from May 6, 2004 to August 19, 2010 and 20 percent disabling from August 20, 2010 and continuing thereafter for his left lower extremity peripheral neuropathy under DC 7913-8620. The Veteran is also rated 10 percent disabling from May 6, 2004 and continuing thereafter for his right lower extremity peripheral neuropathy under DC 7913-8620. The rating period on appeal is from August 20, 2010, the receipt date of the Veteran’s increased rating claims for his left and right lower extremities. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). Under DC 8620, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; and a 40 percent rating is warranted for moderately severe incomplete paralysis. 38 C.F.R. § 4.124a, DC 8620 (2017). A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. An 80 percent rating is warranted for complete paralysis. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2017). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2017). Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is “equitable and just.” 38 C.F.R. § 4.6 (2017). In the September 2010 VA examination, the Veteran reported that his peripheral neuropathy in both lower extremities had worsened. The Veteran treats his peripheral neuropathy with medication. The examiner indicated that reflex, sensory, position sense and motor testing was normal for both lower extremities. Pain/pinprick and light touch testing revealed decreased results. There were no dysesthesias, muscle atrophy, gait abnormality, imbalance, tremors or fasciculations. Muscle tone was normal. In the June 2012 VA examination, the Veteran reported that his left lower extremity was worse than his right lower extremity. The examiner noted that the Veteran experienced mild constant pain and mild numbness for both lower extremities. It was noted that the Veteran did not experience intermittent pain and paresthesias. Deep tendon reflex testing revealed decreased results. Vibration sensation was decreased and absent for the right and left lower extremities, respectively. Position sense and cold sensation were not tested. Muscle strength was normal. There was no muscle atrophy or trophic changes. The examiner indicated that the Veteran’s right lower extremity sciatic nerve exhibited mild incomplete paralysis and left lower extremity sciatic nerve exhibited moderate incomplete paralysis. In his June 2015 Board hearing, the Veteran testified experiencing constant pain and numbness pertaining to his left lower extremity peripheral neuropathy. He also testified experiencing tingling, burning and cold sensations pertaining to his right lower extremity peripheral neuropathy. The Veteran indicated having trouble with stability and that he falls once every two weeks. In the August 2016 VA examination, the Veteran reported that his peripheral neuropathy for both lower extremities had improved. The examiner noted that the Veteran experienced mild numbness in his left lower extremity but no numbness in the right lower extremity. It was noted that the Veteran did not experience constant pain, intermittent pain or paresthesias. Deep tendon reflex testing, position sense and muscle strength was normal. Light touch testing revealed decreased results in the left foot but was otherwise normal. Vibration and cold sensation was not tested. There was no muscle atrophy or trophic changes. The examiner indicated that the Veteran’s bilateral lower extremity peripheral neuropathy had improved due to increased insulin and the bypass surgery. A preponderance of the evidence is against a finding of an increased rating more than 20 percent for the Veteran’s left lower extremity peripheral neuropathy for the entirety of the rating period on appeal. The September 2010 VA examination revealed normal findings except for pain/pinprick and light touch testing which indicated decreased findings. In addition, the June 2012 VA examiner indicated that the Veteran’s left lower extremity exhibited moderate incomplete paralysis. Furthermore, in his June 2015 Board hearing, the Veteran testified to experiencing constant pain, numbness and trouble with stability. Moreover, in the August 2016 VA examination, the Veteran reported and the VA examiner indicated that the Veteran’s left lower extremity peripheral neuropathy had improved. The evidence shows that the Veteran’s disability picture for his left lower extremity peripheral neuropathy more nearly approximates moderate incomplete paralysis. Therefore, an increased rating more than 20 percent is not warranted and the claim is denied. A preponderance of the evidence is also against a finding of an increased rating more than 10 percent for the Veteran’s right lower extremity peripheral neuropathy for the entirety of the rating period on appeal. The September 2010 VA examination revealed normal findings except for pain/pinprick and light touch testing which indicated decreased findings. In addition, the June 2012 VA examiner indicated that the Veteran’s right lower extremity exhibited mild incomplete paralysis. Furthermore, in his June 2015 Board hearing, the Veteran testified to experiencing tingling, burning, cold sensations and trouble with stability. Moreover, in the August 2016 VA examination, the Veteran reported and the VA examiner indicated that the Veteran’s right lower extremity peripheral neuropathy had improved. The evidence shows that the Veteran’s disability picture for his right lower extremity peripheral neuropathy more nearly approximates mild incomplete paralysis. Therefore, an increased rating more than 10 percent is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel