Citation Nr: 18153974
Decision Date: 11/29/18	Archive Date: 11/28/18

DOCKET NO. 15-23 670
DATE:	November 29, 2018
ORDER 
Entitlement to an initial compensable rating for erectile dysfunction is denied.
Entitlement to an increased rating of 10 percent, but not higher, for right thigh abscess is granted, subject to the laws and regulations controlling the award of monetary benefits.
Entitlement to an initial rating higher than 20 percent for diabetes mellitus (DMII) is denied.
Entitlement to an initial rating higher than 30 percent for diabetic nephropathy is denied.
Entitlement to an initial rating of 20 percent, but not higher, prior to June 5, 2012 for peripheral neuropathy of the left lower extremity with sciatic nerve involvement is granted, subject to the laws and regulations controlling the award of monetary benefits.
Entitlement to an increased rating higher than 20 percent for the period from June 5, 2012 for peripheral neuropathy of the left lower extremity with sciatic nerve involvement is denied.
Entitlement to an initial rating of 20 percent, but not higher, prior to June 5, 2012 for peripheral neuropathy of the right lower extremity with sciatic nerve involvement is granted, subject to the laws and regulations controlling the award of monetary benefits.
Entitlement to an increased rating higher than 20 percent for the period from June 5, 2012 for peripheral neuropathy of the right lower extremity with sciatic nerve involvement is denied.
Entitlement to an initial rating higher than 20 percent for peripheral neuropathy of the left lower extremity with femoral nerve involvement is denied.
Entitlement to an initial rating higher than 20 percent for peripheral neuropathy of the right lower extremity with femoral nerve involvement is denied.
Entitlement to an initial rating of 40 percent, but not higher, for Parkinson’s disease with tremor, muscle rigidity and stiffness of right upper extremity and peripheral neuropathy is granted, subject to the laws and regulations controlling the award of monetary benefits.
Entitlement to an initial rating higher than 20 percent for left upper extremity diabetic peripheral neuropathy with Parkinson’s disease tremor, muscle rigidity, and stiffness is denied.
Entitlement to an initial rating of 10 percent, but not higher, for loss of automatic movements is granted, subject to the laws and regulations controlling the award of monetary benefits.
Entitlement to an initial compensable rating for loss of smell is denied.
Entitlement to an initial rating of 10 percent, but not higher, for speech changes is granted, subject to the laws and regulations controlling the award of monetary benefits.
Entitlement to an initial rating of 70 percent, but not higher, for the period prior to May 27, 2015 for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations controlling the award of monetary benefits.
Entitlement to a rating higher than 70 percent for the period from May 27, 2015 for posttraumatic stress disorder (PTSD) is denied.
Entitlement to a total disability rating due to individual unemployability (TDIU) is granted for the period on appeal prior to May 27, 2015, subject to the laws and regulations controlling the award of monetary benefits.
FINDINGS OF FACT
1. The Veteran’s erectile dysfunction does not result in deformity of the penis with loss of erectile power.
2. The evidence is at least evenly balanced as to whether the Veteran’s right thigh abscess is painful, but does not exceed 12 square inches, or involve 3 scars or more.
3. The Veteran’s DMII has not required regulation of activities.
4. The Veteran’s diabetic nephropathy did not more nearly approximate constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension with diastolic pressure predominantly 120 or more. 
5. For the period prior to June 5, 2012, the Veteran’s symptoms of peripheral neuropathy of the left lower extremity more nearly approximates moderate, and not moderately severe, incomplete paralysis of the sciatic nerve.
6. For the period from June 5, 2012, the Veteran’s symptoms of peripheral neuropathy of the left lower extremity did not more nearly approximate at least moderately severe incomplete paralysis of the sciatic nerve.
7. For the period prior to June 5, 2012, the Veteran’s symptoms of peripheral neuropathy of the right lower extremity more nearly approximates moderate, and not moderately severe, incomplete paralysis of the sciatic nerve.
8. For the period from June 5, 2012, the Veteran’s symptoms of peripheral neuropathy of the right lower extremity did not more nearly approximate at least moderately severe incomplete paralysis of the sciatic nerve.
9. The Veteran’s peripheral neuropathy of the left lower extremity with femoral nerve involvement did not more nearly approximate at least severe incomplete paralysis.
10. The Veteran’s peripheral neuropathy of the right lower extremity with femoral nerve involvement did not more nearly approximate at least severe incomplete paralysis.
11. For the entire period on appeal, the Veteran’s Parkinson’s disease with tremor, muscle rigidity and stiffness of the right upper extremity and diabetic peripheral neuropathy more nearly approximated moderate incomplete paralysis, but not at least severe incomplete paralysis of a major extremity.
12. The Veteran’s left upper extremity peripheral neuropathy did not more nearly approximate at least moderate incomplete paralysis.
13. The Veteran’s loss of automatic movements more nearly approximated no more than incomplete moderate paralysis.
14. The Veteran’s loss of smell more nearly approximated no worse than partial loss; complete loss of smell is not shown. 
15. The Veteran’s speech changes more nearly approximated moderate, but not severe, paralysis symptoms.
16. For the period prior to May 27, 2015, the evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran’s PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but have not more nearly approximated total occupational and social impairment.
17. For the period from May 27, 2015, the symptoms and overall impairment caused by the Veteran’s PTSD have not more nearly approximated total occupational and social impairment.
18. Prior to May 27, 2015, the date the Veteran was awarded a total disability rating, the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.115b, Diagnostic Code (DC) 7522.
2. Resolving reasonable doubt in favor of the Veteran, the criteria for an increased rating of 10 percent, but not higher, for a right thigh abscess have been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, DC 7804.
3. The criteria for an initial rating higher than 20 percent for DMII have not all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.119, DC 7913.
4. The criteria for an initial rating higher than 30 percent for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115b, DC 7541.
5. For the period prior to June 5, 2012, the criteria for a rating of 20 percent, but not higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520.
6. For the period from June 5, 2012, the criteria for a rating higher than 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520.
7. For the period prior to June 5, 2012, the criteria for a rating of 20 percent, but not higher, for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520.
8. For the period from June 5, 2012, the criteria for a rating higher than 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520.
9. The criteria for a rating higher than 20 percent for peripheral neuropathy of the left lower extremity with femoral nerve involvement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8526.
10. The criteria for a rating higher than 20 percent for peripheral neuropathy of the right lower extremity with femoral nerve involvement have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8526.
11. The criteria for an initial rating of 40 percent, but not higher, for Parkinson’s disease with tremor, muscle rigidity and stiffness of the right upper extremity and diabetic peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8513.
12. The criteria for a rating higher than 20 percent for peripheral neuropathy of the left upper extremity have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8513.
13. The criteria for entitlement to a rating of 10 percent, but not higher, for loss of automatic movements due to Parkinson’s disease have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, DC 8207.
14. The criteria for entitlement to a compensable rating for loss of smell, due to Parkinson’s disease have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.87a, DC 6275.
15. The criteria for entitlement to a rating of 10 percent, but not higher, for speech change due to Parkinson’s disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, DC 8210.
16. With reasonable doubt resolved in favor of the Veteran, for the period prior to May 27, 2015, the criteria for a rating of 70 percent, but not higher, for PTSD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DC 9411.
17.  For the period from May 27, 2015, the criteria for a 100 percent rating for PTSD have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DC 9411.
18. Prior to May 27, 2015, the criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1966 to December 1968.
This case comes before the Board of Veterans’ Appeals (Board) on appeal of November 2011 and June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.
In the June 2015 rating decision, the RO assigned separate ratings for residuals due to the Veteran’s Parkinson’s disease and increased the rating for PTSD to 70 percent effective May 27, 2015.
In July 2015 the Veteran requested a video conference Board hearing before a Veterans Law Judge which was scheduled for October 9, 2018.  However, the Veteran failed to attend the scheduled hearing and provided no explanation for his absence, thus his hearing request is deemed withdrawn. 38 C.F.R. §§ 20.702 (d); 20.704(d).
Increased Ratings
Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).
1. Erectile dysfunction 
The Veteran’s erectile dysfunction is currently rated noncompensable under DC 7599-7522.  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 evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using “99” for the last 2 digits.  Id.  
Pursuant to DC 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power.  This is the only schedular rating provided under this diagnostic code.  Where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met.  38 C.F.R § 4.31.  There are no other schedular criteria applicable to erectile dysfunction.
In Williams v. Wilkie, 30 Vet. App. 134 (2018) the Court noted that, although DC 7522 requires a “deformity” for a compensable rating, VA has not expressly defined this term. The Court therefore assigned the ordinary meaning to this word. In doing so, the Court noted that a “deformity” is a “distortion of any part or general disfigurement of the body” (citing Dorland’s Illustrated Medical Dictionary 478 (32d ed. 2012)).  The Court also noted that Dorland’s further defines various types of internal and external deformities.  The Court therefore held that “deformity” under DC 7522 means a distortion of the penis, either internal or external.  Williams, 30 Vet. App. at 138.

The Board notes that the Veteran has been awarded special monthly compensation (SMC) based on loss of use of a creative organ since September 29, 2009.  The April 2010 rating decision granted this benefit based on the Veteran’s erectile dysfunction which was rated noncompensable from September 29, 2009.  However, granting a compensable rating under DC 7522 in addition to SMC for loss of use of a creative organ does not constitute impermissible pyramiding.  Id. at 137.
A March 2011 VA examination note indicated the Veteran suffered from urinary urgency, hesitancy/difficulty starting stream, weak or intermittent stream, dribbling, urinary frequency of every 2 to 3 hours, nocturia voiding 5 or more times a night, and urinary leakage.  His condition required wearing of absorbent material that must be changed less than 2 times a day.  The examination note indicated the Veteran’s erectile dysfunction was most likely due to diabetic neuropathy treated with oral medication which was effective in allowing intercourse and normal ejaculation.  The report noted the Veteran’s penis, prostate, testicles, and epididymis were normal.
A June 2015 disability benefits questionnaire (DBQ) noted a diagnosis for benign hypertrophy of the prostate which the Veteran treated with medication.  The Veteran had not had an orchiectomy and there was no renal dysfunction due to the condition.  The Veteran did not have a voiding dysfunction, erectile dysfunction, or retrograde ejaculation.  The Veteran did not have a history of chronic epididymitis, epididymo-orchitis or prostatitis and his penis, testes, epididymis and prostate were normal upon examination.  The Veteran did not have any benign or malignant neoplasm or metastases, scars, or other pertinent findings, complications, conditions, signs or symptoms related to his diagnosis.  A prostate specific antigen (PSA) of 1.6 ng/ml in January 2015 was noted.  The examiner indicated the Veteran’s benign hypertrophy of the prostate did not impact his ability to work.
Based upon the evidence of record and the relevant laws and regulations, a compensable rating for the Veteran’s erectile dysfunction is not warranted.  In this regard, for the entire period on appeal, the Veteran’s disability is manifested by erectile dysfunction which was treated with oral medication.  While the Veteran’s erectile dysfunction is controlled by medication, that fact may not be used as a basis upon which to consider whether the Veteran is entitled to a higher rating as the DC 7522 does not specifically contemplate relief provided by medication.  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  However, the March 2011 VA examination report and June 2015 DBQ both indicate the Veteran’s penis is normal upon examination.  The Veteran has not indicated, and there is no indication in the evidence of record, that the Veteran suffers from a deformity of the penis, either external or internal.  Therefore, the Veteran’s erectile dysfunction symptoms do not more nearly approximate those contemplated by a 20 percent rating under DC 7522.
As a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim for an initial compensable rating for erectile dysfunction must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
2. Right thigh abscess
The Veteran’s right thigh abscess is currently rated noncompensable from February 1, 2012 under DC 7820-7804.
DC 7820 provides that disabilities evaluated under that DC are to be rated as disfigurement of the head, face, or neck under DC 7800, as scars under DCs 7801-7805, or as dermatitis under DC 7806, depending on the predominant disability. 38 C.F.R. § 4.118, DC 7820. 
The diagnostic codes 7801-7805 (for scars) were revised effective October 23, 2008. The regulatory changes pertaining to the rating of scars apply only to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the clarified criteria. See 73 Fed. Reg. 54708 (Sept. 23, 2008). As the Veteran’s application for in increased rating was received after that date, the revised criteria are applicable.
Under DC 7805, scars, including linear scars, and other effects of scars, are to be evaluated under DC 7800-7802 and 7804.  In addition, any disabling effects not considered in a rating provided under DC 7800-7804 is to be evaluated under an appropriate diagnostic code.
As a preliminary matter, the Board notes that the Veteran’s scar is located on his right thigh.  As such, DC 7800 (scars of the head, face, or neck) is not applicable.
Under DC 7801, scars of other than the head, face, or neck that are deep or cause limited motion warrant a 10 percent rating when involving an area or areas exceeding 6 square inches (39 sq. cm.); warrant a 20 percent rating when involving an area or areas exceeding 12 square inches (77 sq. cm.); warrant a 30 percent rating when involving an area or areas exceeding 72 square inches (465 sq. cm.); and warrant a 40 percent rating when involving an area or areas exceeding 144 square inches (929 sq. cm.). 
Under DC 7802, scars other than head, face, or neck that are superficial and that do not cause limited motion warrant a rating of 10 percent when involving an area of 144 square inches (929 sq. cm.) or greater.
Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating.
A March 2011 VA treatment note indicates the Veteran presented with a large right hip abscess and cellulitis increasing over the last few days with no fevers, mild purulent discharge, and mild swelling. The abscess was noted as a 4cm by 4 cm raised, tender, fluctuant abscess with 10 cm peri-wound erythema.
A March 2011 follow up note indicated the Veteran’s right lateral thigh abcess had improved redness, swelling and pain.  The Veteran denied fever, nausea or diarrhea.  The note indicated the Veteran’s abscess was healing well with no re-packing required.
The evidence is at least evenly balanced as to whether the symptoms of the Veteran’s right thigh abscess more nearly approximate those contemplated by a 10 percent rating under DC 7804.  The March 2011 VA treatment note indicates that while the right lateral thigh abscess had improved, there was still redness, swelling and pain.  As the Veteran’s right thigh abscess continues to cause pain, a 10 percent rating is warranted.  The evidence of record does not indicate that the Veteran’s right thigh abscess involves an area exceeding 12 square inches, or involves more than 2 scars.  Therefore, a disability rating higher than 10 percent for the Veteran’s right lateral thigh abscess is not warranted.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 10 percent rating, but not higher, for a right lateral thigh abscess is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 
3. Diabetes mellitus 
The Veteran’s DMII is currently rated as 20 percent disabling under DC 7913.  Under DC 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet; or, hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes 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.  A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of 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.
Within the criteria for a 100 percent rating, “regulation of activities” is defined as “avoidance of strenuous occupational and recreational activities.”  This definition also applies to the “regulation of activities” criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007).  Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364.  In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction “and” is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009).
A May 2010 neurology note indicates the Veteran takes medication 4 times a day which has benefited his right-hand tremor/rigidity.
In an April 2011 VA examination report, the Veteran reported progressive loss of vision with intermittent blurred vision, pain, dysesthesia, gait abnormality, unsteadiness of feet, right buttocks boil, urinary frequency and urgency, and erectile dysfunction.  The Veteran stated he used to work as a custodian but due to fatigue and subjective numbness and tingling in his feet he is unable to stand for greater than 10 to 15 minutes, or walk greater than 1 block.  He stated his job skills include manual labor and noted he has never held a “desk job”. 
A June 2012 impairment questionnaire noted the Veteran’s diagnosis for DMII which was chronic and caused paresthesias in his feet.  The questionnaire noted moderate peripheral neuropathy of the right and left lower extremities.  The Veteran’s blood urea nitrogen (BUN) level was 16, and the Veteran did not suffer ketoacidosis or hypoglycemic reactions requiring hospitalization within the past 12 months.  The examiner indicated that the Veteran would only be able to sit for 2 hours and stand for 1 hour in a normal competitive 5 day a week work environment on a sustained basis, and noted it would be necessary or medically recommended that the Veteran not sit, stand, or walk continuously in a work setting.  The examiner noted the Veteran cannot lift or carry any amount of weight, and opined that his pain, fatigue and other symptoms are severe enough to constantly interfere with attention and concentration.  The examiner stated the Veteran’s chronic neuropathy related to DMII as well as gait dysfunction and tremors related to Parkinson’s render the Veteran unable to work.
A May 2015 DBQ noted a diagnosis for DMII which was managed by restricted diet and 1 insulin injection per day, but did not require regulation of activities. The examination report noted the Veteran visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than 2 times per month.  The Veteran did not report any episodes of ketoacidosis or hypoglycemic reactions which required hospitalization over the past 12 months.  The Veteran did not have any progressive unintentional weight loss and loss of strength attributable to DMII.  The examiner noted the Veteran had diabetic peripheral neuropathy.  The examination report noted a 7.6 A1C test result.  The examiner opined that the Veteran’s DMII did not impact his ability to work.
Based on the foregoing, the Board finds that a rating higher than 20 percent is not warranted at any time throughout the appeal.  The above reflects that there is no evidence of regulation of activities as required for a rating higher than 20 percent under DC 7913.  The Veteran has not indicated that any physician advised him to regulate his activities due to his DMII, and the June 2012 medical professional and May 2015 examination report note that the Veteran’s DMII was treated with insulin and a restricted diet, but not regulation of activities.  As the only medical opinions to specifically address the question indicated that the Veteran did not have to regulate his activities due to his DMII and there is no evidence inconsistent with this opinion, the weight of the evidence is against a finding that the Veteran’s DMII requires regulation of activities.  As noted, while lay evidence must be considered as part of all claims, medical evidence is required to support the regulation of activities criterion for a 40 percent rating for diabetes.
As the higher ratings all require regulation of activities, and there is no argument or evidence of ketoacidosis or hypoglycemic reactions requiring hospitalizations or visits to a diabetic care provider at least twice a month, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran’s DMII throughout the appeal. The benefit of the doubt doctrine is thus not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
4. Diabetic nephropathy
The Veteran’s diabetic nephropathy is currently rated 30 percent disabling pursuant to 38 C.F.R. § 4.115b, DC 7541, which directs that renal involvement in diabetes mellitus is rated as renal dysfunction.
Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular warrants a 100 percent evaluation.  Persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent evaluation.  Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101 (diastolic pressure predominantly 120 or more) warrants a 60 percent evaluation.  Albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101 warrants a 30 percent evaluation.
For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, DC 7101, note 1.
A June 2012 impairment questionnaire noted the Veteran’s blood urea nitrogen level was 16.  A May 2015 DBQ noted the Veteran’s diabetic nephropathy required taking continuous medication but did not require dialysis, and the examination report indicated the Veteran had renal dysfunction as evidenced by persistent proteinuria.  There was no history of symptomatic urinary tract or kidney infections, the Veteran had not had a kidney transplant or removal, and there was no benign or malignant neoplasm or metastases related to his diabetic nephropathy.  Diagnostic studies were normal and the examiner opined that the Veteran’s kidney condition did not impact his ability to work.
June 2016 VA treatment notes the Veteran’s BUN level was 11.0 mg/dl. November 2017 VA treatment notes indicate the Veteran’s creatinine levels are within the normal range at 1.0 mg/dl. A March 2018 DBQ noted a diagnosis for diabetic nephropathy which required that the Veteran take continuous medication.  The examination report noted that the Veteran had renal dysfunction with persistent proteinuria, but no frequent attacks of colic with infection, no kidney, uretal or bladder calculi (urolithiasis), no recurrent urinary tract or kidney infections, no kidney removal or transplant, no benign or malignant neoplasm or metastases, and no scars related to his nephropathy.  The examination report noted that the Veteran’s nephropathy did not impact the Veteran’s ability to work.
Based on the foregoing, an evaluation greater than 30 percent for service-connected diabetic nephropathy is not warranted.  A review of the available evidence does not show that there have been symptoms approximating constant albuminuria with some edema or definite decrease in kidney function or hypertension at least 40 percent disabling.  The Veteran’s creatinine levels and BUN levels were within the normal range and there is no evidence of record of hypertension, albuminuria with edema, generalized poor health, or decrease in kidney function.  Therefore, based on a preponderance of the evidence, a rating higher than 30 percent for the Veteran’s diabetic nephropathy is not warranted. The benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
5. Right and left lower extremity peripheral neuropathy with sciatic nerve involvement
The Veteran’s peripheral neuropathy of the lower left and lower right extremities with sciatic nerve involvement are rated 10 percent disabling prior to June 5, 2012, and 20 percent disabling thereafter under DC 8520 for paralysis of the sciatic nerve.
Under DC 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely), lost. Id.
Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2017).
March 2011 neurological emergency department notes indicate normal strength throughout neurologically with sensation intact to sharp and dull.  The Veteran did not have any complaints regarding peripheral neuropathy and a normal EMG from May 2010 was referenced.  The Veteran indicated that he had experienced some stumbling, but no falls.
A June 2012 impairment questionnaire noted the Veteran’s diagnosis for DMII which was chronic and caused paresthesias in his feet.  The questionnaire noted moderate peripheral neuropathy of the right and left lower extremities.  The medical professional stated that the Veteran suffers from chronic neuropathy related to diabetes as well as gait dysfunction and tremors related to Parkinson’s disease which render him unable to work.
A May 2015 DBQ reported diagnoses for moderate bilateral lower extremity diabetic peripheral neuropathy and mild bilateral upper extremity diabetic peripheral neuropathy.  The examination report noted symptoms which included mild intermittent pain and paresthesias and/or dysesthesias, and numbness of the left and right lower extremities.  Strength and deep tendon reflexes were normal for all extremities, but the examination report noted decreased light touch/monofilament results for the right and left hand/fingers, and feet/toes.  The Veteran did not have muscle atrophy or trophic changes.  The examiner noted mild incomplete paralysis of the right and left radial nerves, median nerves, and ulnar nerves.  The examiner also noted moderate incomplete paralysis of the right and left sciatic nerves and opined that the Veteran’s diabetic peripheral neuropathy did not impact his ability to work.
A June 2015 DBQ noted severe paresthesias and/or dysesthesias of the right and left lower extremities, and mild numbness in the right and left upper extremities, and right and left lower extremities.  Muscle strength was normal in all extremities, but deep tendon reflexes were decreased in both biceps, triceps, brachioradialis, knees, and ankles.  Light touch/monofilament testing results were normal except decreased sensitivity in the left ankle/ lower leg, and left foot/toes.  Vibration sensation was decreased in the right and left lower extremities.  The Veteran did not have muscle atrophy, or trophic changes.  The examination report noted the Veteran did not have an upper extremity diabetic peripheral neuropathy, but did have a lower extremity diabetic peripheral neuropathy.  The examiner noted normal sciatic and femoral nerves.  The examiner stated the Veteran’s diabetic peripheral neuropathy did not impact his ability to work.
Based on the foregoing, for the period prior to June 5, 2012, the evidence is at least evenly balanced as to whether a disability rating of 20 percent for both right and left lower extremity peripheral neuropathy of the sciatic nerve is warranted.  While the March 2011 neurological emergency department notes indicate normal strength and intact sensation to sharp and dull touch, the Veteran indicated that he had experienced some stumbling because of his peripheral neuropathy, indicating weakness in the lower extremities.  It has been noted that neurological symptoms consisting of sensory disturbances cannot be assessed as reflecting more than moderate incomplete paralysis and the evidence suggests that the Veteran’s symptoms have contributed to weakness; symptoms which more nearly approximate those contemplated by a 20 percent rating under DC 8520 for moderate incomplete paralysis of the sciatic nerve.  As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, for the period prior to June 5, 2012 an initial rating of 20 percent, but not higher, for peripheral neuropathy of the right and left lower extremities with sciatic nerve involvement is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.  
However, a disability rating higher than 20 percent for peripheral neuropathy of the right and left lower extremities is not warranted at any time during the period on appeal.  The evidence of record does not indicate that the Veteran’s right and left peripheral neuropathy of the sciatic nerve more nearly approximated at least moderately severe incomplete paralysis.  The June 2012 impairment questionnaire report and May 2015 examiner described the Veteran’s peripheral neuropathy as moderate, and the May 2015 examiner noted mild intermittent pain and paresthesias and/or dysesthesias, and numbness of the right and left lower extremities.  The May 2015 examiner also noted moderate incomplete paralysis of the sciatic nerves.  While the June 2015 examiner noted severe paresthesias and/or dysesthesias of the right and left lower extremities, muscle strength was normal, and the examiner reported normal sciatic nerves.
Accordingly, the weight of the evidence demonstrates that the right and left lower extremity radiculopathy have not more nearly approximated moderately severe incomplete paralysis of the sciatic nerve, as is required for a 40 percent rating. Therefore, for the period from June 5, 2012, a disability rating higher than 20 percent peripheral neuropathy of both the right and left lower extremities with sciatic nerve involvement is not warranted.  As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 
6. Peripheral neuropathy of the right and left lower extremities with femoral nerve involvement.
The Veteran’s peripheral neuropathy of the right and left lower extremity with femoral nerve involvement is currently rated as 20 percent disabling under DC 8526.  
Under DC 8526, moderate incomplete paralysis of the anterior crural (femoral) nerve, as well as neuritis (8626) and neuralgia (8726) of that nerve, warrants a 20 percent rating. Severe incomplete paralysis of the femoral nerve warrants a 30 percent rating. With complete paralysis of the femoral nerve, which warrants a 40 percent rating, there is paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a.
A June 2012 impairment questionnaire noted the Veteran’s diagnosis for DMII which was chronic and caused paresthesias in his feet.  The questionnaire noted moderate peripheral neuropathy of the right and left lower extremities.  
A May 2015 DBQ noted symptoms which included mild intermittent pain and paresthesias and/or dysesthesias, and numbness of the left and right lower extremities.  Strength and deep tendon reflexes were normal for all extremities, but the examination report noted decreased light touch/monofilament results for the right and left hand/fingers, and feet/toes.  The Veteran did not have muscle atrophy or trophic changes.  The examiner noted mild incomplete paralysis of the right and left radial nerves, median nerves, and ulnar nerves.  
A June 2015 DBQ noted severe paresthesias and/or dysesthesias of the right and left lower extremities, and mild numbness in the right and left lower extremities.  Muscle strength was normal in all extremities, but deep tendon reflexes were decreased in both biceps, triceps, brachioradialis, knees, and ankles.  Light touch/monofilament testing results were normal except decreased sensitivity in the left ankle/ lower leg, and left foot/toes.  Vibration sensation was decreased in the right and left lower extremities.  The Veteran did not have muscle atrophy, or trophic changes.  The examination report noted lower extremity diabetic peripheral neuropathy.  The examiner noted normal sciatic and femoral nerves.
A March 2018 DBQ for upper and lower extremity peripheral neuropathy reported the Veteran started noticing numbness on all his fingers and burning sharp pains at the bottom of both feet over the past year.  The Veteran is right hand dominant and reported no constant pain in the upper or lower extremities, mild intermittent pain and paresthesias and/or dysesthesias in both lower extremities, and mild numbness in both upper and lower extremities.  The examination report indicated normal strength and deep tendon reflexes in all extremities, and decreased light touch/ monofilament testing results in both hands/fingers, and both feet/toes.  The examiner noted decreased vibration and cold sensation in both upper and lower extremities, but no muscle atrophy or trophic changes attributable to diabetic peripheral neuropathy.  The examination report indicated that the Veteran had mild incomplete paralysis of the radial nerve in both the right and left upper extremity due to diabetic peripheral neuropathy, normal median, ulnar and sciatic nerves, but mild incomplete paralysis of the femoral nerve.  The examiner noted the Veteran’s peripheral neuropathy did not impact his ability to work.
A disability rating higher than 20 percent for peripheral neuropathy of the right and left lower extremities with femoral involvement is not warranted at any time during the period on appeal.  The evidence of record does not indicate that the Veteran’s right and left peripheral neuropathy of the femoral nerve more nearly approximated at least severe incomplete paralysis.  The June 2012 impairment questionnaire report and May 2015 examiner described the Veteran’s peripheral neuropathy as moderate, and the May 2015 examiner noted mild intermittent pain and paresthesias and/or dysesthesias, and numbness of the right and left lower extremities.  While the June 2015 examiner noted severe paresthesias and/or dysesthesias of the right and left lower extremities, muscle strength was normal, and the examiner reported normal femoral nerves.  Additionally, the March 2018 examiner noted mild incomplete paralysis of the femoral nerve.  While an examiner’s description of the level of impairment is not binding on the Board, here it is consistent with the above evidence of record.
Accordingly, the weight of the evidence demonstrates that the right and left lower extremity radiculopathy with femoral nerve involvement have not more nearly approximated severe incomplete paralysis of the femoral nerve, as is required for a 30 percent rating.  Therefore, a disability rating higher than 20 percent for peripheral neuropathy of the right and left lower extremities with femoral nerve involvement is not warranted.  There is no reasonable doubt to be resolved as to these issues.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
7. Parkinson’s disease 
Ratings for Parkinson’s disease, classified in VA regulations as “paralysis agitans,” are assigned pursuant to 38 C.F.R. § 4.124a, DC 8004.  Under this DC, a minimum 30 percent rating is assigned if there are “ascertainable residuals” of the disability.  VA must also analyze individual chronic symptoms residual to Parkinson’s disease under the appropriate DCs for that body system. See 38 C.F.R. § 4.124a.  If there are identifiable residuals that can be rated under a separate diagnostic code and the combined disability rating resulting from these residuals exceeds 30 percent for any period, then the separate ratings will be assigned for that period in place of the minimum rating assigned under DC 8004.
Neurological conditions such as Parkinson’s disease are evaluated under the section of the Rating Schedule beginning at 38 C.F.R. § 4.120, conducting evaluations by comparison.  38 C.F.R. § 4.120 provides that disability in this field is ordinarily to be rated in proportion to the impairment of motor, sensory or mental function.  The rater is to consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc.  In rating such disability, the rater is to refer to the appropriate schedule.  In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120. 
The provisions of 38 C.F.R. § 4.124a provide that evaluations of neurological conditions such as Parkinson’s disease, and their residuals may also be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc. are to be considered.  With partial loss of use of one or more extremities from neurological lesions, the rating is by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves.  As it pertains to peripheral nerve disabilities the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.
The Veteran’s Parkinson’s disease is rated as 30 percent disabling prior to May 27, 2015 under DC 8004, and 40 percent disabling thereafter under DC 8004-8513 for Parkinson’s disease with tremor, muscle rigidity and stiffness of right upper extremity and peripheral neuropathy.
A December 2010 VA examination noted a diagnosis for Parkinson’s Disease with symptoms which included right hand tremors.  The Veteran reported sometimes losing his balance and that his symptoms have become progressively worse.  The examiner noted abnormal cerebellar examination, abnormal gait, static pill rolling tremor of the right upper extremity, mild titubation with chin/face tremor, inconsistent sensory examination results, right upper extremity cogwheel rigidity, and Tinel’s sign of both wrists were negative.  The examination report noted the Veteran’s Parkinson’s disease caused increased absenteeism and required that the Veteran be assigned different duties.  The examiner noted that the Veteran is unable to return to his employment as a maintenance worker due to pain in the knees and shoulders due to arthritis.  The examiner noted the Veteran has a high school diploma and could do limited driving, therefore the Veteran’s Parkinson’s disease diagnosis does not render him unable to obtain or sustain gainful employment.  
A June 2012 DBQ noted the Veteran’s diagnosis for Parkinson’s disease manifested by mild stooped posture, moderate balance impairment and bradykinesia or slowed motion, mild tremors of the left upper extremity, no loss of automatic movements or speech changes, and no muscle rigidity and stiffness.  The examination report noted moderate depression, sleep disturbance, and difficulty swallowing due to complications of his Parkinson’s disease.  The report also noted mild sexual dysfunction and cognitive impairment or dementia.  The examiner stated the Veteran was unable to hold a job due to tremors, depression, forgetfulness, and slowed gait.
The Veteran submitted a statement from his brother who contended the Veteran’s Parkinson’s disease has steadily worsened even with medication.  He stated that he has observed mild shaking or spasms of the right hand that has progressed to constant shaking of his right hand, wrist and forearm as well as twitching on the right side of the mouth.
A June 2015 DBQ noted the Veteran’s Parkinson’s caused mild stooped posture, bradykinesia or slowed motion, loss of automatic movements, and speech changes.  Moderate tremors of the right upper extremities and mild tremors of the left upper extremities were noted.  The Veteran had mild muscle rigidity and stiffness in both upper and lower extremities.  The examination report noted mild depression, partial loss of sense of smell, mild sleep disturbance, and moderate sexual dysfunction.  The examiner opined that the Veteran’s Parkinson’s disease did not impact his ability to work.  The examiner additionally noted the Veteran was totally independent and able to do office work or other light duty work.
A March 2018 disability benefits questionnaire noted mild stooped posture, balance impairment, Bradykinesia or slowed motion, loss of automatic movements, and speech changes.  The Veteran suffered from moderate tremors in the right upper extremity, and mild tremors in the left upper extremity.  Mild muscle rigidity and stiffness was noted in the right and left upper and lower extremities.  The Veteran suffered mild depression, partial loss of sense of smell, moderate sleep disturbance, and moderate sexual dysfunction due to Parkinson’s or its treatment.  The examiner opined that the Veteran’s Parkinson’s did not impact his ability to work.
As previously discussed, a minimum 30 percent rating is assigned if there are “ascertainable residuals” of Parkinson’s disease under DC 8004, but if there are identifiable residuals that can be rated under a separate diagnostic code and the combined disability rating resulting from these residuals exceeds 30 percent for any period, then the separate ratings will be assigned for that period in place of the minimum rating assigned under DC 8004.  
For the period from May 27, 2015, the Board finds a rating of 40 percent, but not higher, for the Veteran’s Parkinson’s disease with tremor, muscle rigidity and stiffness of right upper extremity and peripheral neuropathy under DC 8004-8513 is warranted.  DC 8513 provides that mild incomplete paralysis is rated 20 percent disabling for either the major or minor extremity; moderate incomplete paralysis is rated 40 percent disabling for the major extremity and 30 percent for the minor extremity; and severe incomplete paralysis is rated 70 percent disabling for the major extremity and 60 percent for the minor extremity. Complete paralysis of all radicular groups is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity.
The June 2015 and March 2018 examiners noted mild stooped posture, bradykinesia or slowed motion, loss of automatic movements, speech changes, moderate tremors of the right and left upper extremities, and mild muscle rigidity and stiffness in both upper and lower extremities.  The Veteran’s brother stated the Veteran’s right hand, arm and wrist tremors had worsened, and that he had twitching on the right side of the mouth.  The Veteran’s symptomatology has primarily been described as mild and moderate, yet his brother indicated that the symptoms had worsened.  Therefore, the Board finds that the Veteran’s symptomatology more nearly approximates that contemplated by a 40 percent rating for mild incomplete paralysis.  However, the Veteran does not contend, and the evidence of record does not suggest, that the Veteran’s symptoms are severe, thus they do not more nearly approximate symptomatology contemplated by a 70 percent rating under DC 8513 for a major extremity.
Additionally, there is no indication that the symptoms of the Veteran’s Parkinson’s disease with tremor, muscle rigidity and stiffness of right upper extremity and peripheral neuropathy suddenly got worse at the time of the June 2015 examination.  In fact, the December 2010 VA examination noted right hand tremors which the Veteran stated had worsened.  Consequently, a disability rating of 40 percent for the Veteran’s Parkinson’s disease with tremor, muscle rigidity and stiffness of right upper extremity and peripheral neuropathy is warranted for the entire period on appeal.  The 40 percent rating assigned under DC 8004-8513 for the entire period will thus replace the 30 percent rating previously assigned under DC 8004 for the period prior to May 27, 2015 as the residual symptoms for Parkinson’s disease exceeds the 30 percent assigned.  
Given the above, the Board finds that an initial disability rating of 40 percent, but not higher, for Parkinson’s disease with tremor, muscle rigidity and stiffness of the right upper extremity and peripheral neuropathy is warranted for the entire period on appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.
8. Left upper extremity diabetic peripheral neuropathy with Parkinson’s disease tremor, muscle rigidity, and stiffness.
The Veteran’s peripheral neuropathy of the left upper extremity is currently rated as 20 percent disabling under 38 C.F.R. § 4.124a, DC 8513.  DC 8513 provides that mild incomplete paralysis is rated 20 percent disabling for either the major or minor extremity; moderate incomplete paralysis is rated 40 percent disabling for the major extremity and 30 percent for the minor extremity; and severe incomplete paralysis is rated 70 percent disabling for the major extremity and 60 percent for the minor extremity. Complete paralysis of all radicular groups is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity.
March 2011 neurological emergency department notes indicate normal strength throughout neurologically with sensation intact to sharp and dull.  The Veteran did not have any complaints regarding peripheral neuropathy and a normal EMG from May 2010 was referenced.
A May 2015 DBQ reported diagnoses for moderate bilateral lower extremity diabetic peripheral neuropathy and mild bilateral upper extremity diabetic peripheral neuropathy.  The examination report noted symptoms which included mild intermittent pain and paresthesias and/or dysesthesias, and numbness of the left and right lower extremities.  Strength and deep tendon reflexes were normal for all extremities, but the examination report noted decreased light touch/monofilament results for the right and left hand/fingers, and feet/toes.  The Veteran did not have muscle atrophy or trophic changes.  The examiner noted mild incomplete paralysis of the right and left radial nerves, median nerves, and ulnar nerves.  
A June 2015 DBQ noted mild numbness in the right and left upper extremities, and right and left lower extremities.  Muscle strength was normal in all extremities, but deep tendon reflexes were decreased in both biceps, triceps, brachioradialis, knees, and ankles.  Light touch/monofilament testing results were normal except decreased sensitivity in the left ankle/ lower leg, and left foot/toes. The Veteran did not have muscle atrophy, or trophic changes.  The examination report noted the Veteran did not have upper extremity diabetic peripheral neuropathy, but did have a lower extremity diabetic peripheral neuropathy.
A March 2018 DBQ for upper and lower extremity peripheral neuropathy reported the Veteran started noticing numbness on all his fingers and burning sharp pains at the bottom of both feet over the past year.  The Veteran is right hand dominant and reported no constant pain in the upper or lower extremities, mild intermittent pain and paresthesias and/or dysesthesias in both lower extremities, and mild numbness in both upper and lower extremities.  The examination report indicated normal strength and deep tendon reflexes in all extremities, and decreased light touch/ monofilament testing results in both hands/fingers.  The examiner noted decreased vibration and cold sensation in both upper and lower extremities, but no muscle atrophy or trophic changes attributable to diabetic peripheral neuropathy.  The examination report indicated that the Veteran had mild incomplete paralysis of the radial nerve in both the right and left upper extremity due to diabetic peripheral neuropathy, normal median, ulnar and sciatic nerves, but mild incomplete paralysis of the femoral nerve.
A March 2018 Parkinson’s disease DBQ noted that the Veteran suffered from mild loss of automatic movements, mild speech changes, moderate tremors of the right upper extremity, mild tremors of the left upper extremity, and mild muscle rigidity of all extremities.  The examiner noted partial loss of sense of smell, moderate sleep disturbance, but no difficulty chewing/swallowing.
Based on the foregoing, the evidence confirms that a rating higher than 20 percent for the Veteran’s peripheral neuropathy of the left upper extremity is not warranted.  The May 2015 examiner noted mild bilateral upper peripheral neuropathy with mild pain, paresthesias/ dysesthesias and numbness, and the June 2015 examiner noted mild numbness with normal strength in the upper extremities, but decreased deep tendon reflexes.  The March 2018 examiners described the pain, numbness, and paresthesias and/or dysesthesias of the upper extremities as mild, and the left upper extremity tremors and muscle rigidity were also noted as mild.  There is no evidence that the Veteran’s left upper extremity symptoms more nearly approximated moderately incomplete paralysis as contemplated by a 40 percent rating under 8513.  In fact, the May 2015 examiner specifically noted mild incomplete paralysis of the right and left radial nerves, median nerves, and ulnar nerves.  While the examiner’s characterization of the level of disability is not binding on the Board, here it is consistent with the above evidence of record.
As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt is not for application, and an initial rating higher than 20 percent for the Veteran’s left upper extremity peripheral neuropathy is not warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
9. Loss of automatic movements 
The Veteran is service connected for loss of automatic movements, rated as noncompensable under 38 C.F.R 4.124a, DC 8207.
Under DC 8207, a 10 percent disability rating is warranted for incomplete moderate paralysis of the seventh cranial nerve, a 20 percent disability rating is warranted for incomplete severe paralysis of the seventh cranial nerve, and a 30 percent disability rating is warranted for complete paralysis of the seventh cranial nerve. Id.
A June 2012 Parkinson’s disease DBQ noted that the Veteran did not suffer from any loss of automatic movements.
June 2015 and March 2018 DBQs noted the Veteran suffered from mild loss of automatic movements.
The evidence of record indicates that the Veteran’s loss of automatic movements more nearly approximates incomplete moderate paralysis of the seventh cranial nerve as contemplated by a 10 percent rating under DC 8207.  The June 2015 and March 2018 note that the Veteran suffers from mild loss of automatic movements, a condition which has worsened from the time of his June 2012 examination when he did not suffer from any loss of automatic movements.  While no examiner has opined as to the degree of paralysis of the cranial nerve, the Board finds that the evidence of record suggests that the degree of disability as evidenced by loss of automatic movements more nearly approximates incomplete moderate paralysis.  There is no indication however that the Veteran’s loss of automatic movements warrants higher than a 10 percent disability rating as there is no evidence of at least incomplete severe paralysis of the seventh cranial nerve, or symptoms that more nearly approximate incomplete severe paralysis of the seventh cranial nerve.  The June 2015 and March 2018 examiners described the Veteran’s loss of automatic movement symptoms as mild and the Veteran has not contended, nor does the evidence suggest that his symptoms are more than moderate.  Thus, a schedular rating of 10 percent, but not higher, for loss of automatic movements is warranted under DC 8207.  As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.
10. Loss of sense of smell
The Veteran’s loss of sense of smell is currently assigned a noncompensable disability rating under 38 C.F.R. § 4.87a, DC 6275.  Under DC 6275, a complete loss of sense of smell warrants a 10 percent disability rating. Id. 
A June 2012 DBQ noted that the Veteran did not suffer from any loss of sense of smell.
June 2015 and March 2018 DBQs noted the Veteran suffered from partial loss of sense of smell.
As the evidence of record fails to document that the Veteran’s Parkinson’s disease has resulted in a complete loss of sense of smell for any period on appeal, a compensable initial disability rating is not warranted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 
11. Speech changes
The Veteran’s speech changes are currently rated noncompensable under 38 C.F.R. § 4.124a, DC 8210.  Under DC 8210, paralysis of the tenth cranial nerve is rated 50 percent if complete, 30 percent if incomplete but severe, and 10 percent if incomplete but moderate. A corresponding note indicates that evaluation is dependent upon the extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach and heart. See 38 C.F.R. § 4.124a, DC 8210.
A June 2012 Parkinson’s disease DBQ noted that the Veteran did not suffer from any speech changes.
June 2015 and March 2018 DBQs noted the Veteran had mild speech changes.
The evidence of record indicates that the Veteran’s speech changes more nearly approximate incomplete but moderate paralysis of the tenth cranial nerve as contemplated by a 10 percent disability rating under DC 8210.  The June 2015 and March 2018 examination report indicate the Veteran’s speech changes had worsened since the June 2012 DBQ.  However, there is no evidence of record which suggest the Veteran’s speech changes were severe.  Therefore, a disability rating of 10 percent, but not higher, for speech changes is warranted under DC 8210.  As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.
12. PTSD
The Veteran contends that his PTSD symptoms warrant a rating higher than 50 percent prior to May 27, 2015, and higher than 70 percent thereafter.
The criteria for rating PTSD are found at 38 C.F.R. § 4.130, DC 9411.  PTSD is rated under the General Rating Formula for Mental Disorders.  Under this formula, a 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.
A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships.  Id.
A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list.  See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013).  In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117.  Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating.  Id. at 116.
Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered.  See 38 C.F.R. § 4.126 (a).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner’s assessment of the level of disability at the moment of the examination. Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely based on social impairment.  See 38 C.F.R. § 4.126 (b).
An August 2005 VA examination report noted the Veteran complained of sleep disturbance, anxiety, depressed mood, nightmares 2 to 3 times a week, mood swings, angry outbursts, intrusive thoughts, hypervigilance and avoidance behaviors.  The Veteran reported having a girlfriend for over seven years and one close friend, stating that he does not feel comfortable around people other than his friend and close relatives.  He retired after 20 years with the Parks and Recreation Department due to his depression and conflicts with his supervisor.  He reported one physical altercation with his supervisor.  The Veteran reported poor concentration, angry outbursts, low tolerance for stress and difficulty interacting with others.  The Veteran reported passive suicidal thoughts, but did not describe suicidal or homicidal ideation.
An October 2006 VA examination report noted the Veteran tends to be socially withdrawn and isolated due to his not feeling safe around others in public.  He reported that he continues to be generally irritable and has difficulty with modulation of his emotions, often “flying off the handle” when frustrated or angry, and reported verbal and physical altercations with others.  The Veteran reported delusions and hallucinations, specifically reporting that he sometimes sees shadows and hears explosions with the sound of bombs going off.  He reported homicidal ideation in the past.
An October 2007 VA examination report indicated the Veteran suffered from some sporadic depression and continues to have nightmares.  
A January 2009 VA examination indicated the Veteran has been irritable and down on everything since his last examination.  He stated this was evidenced by verbal outbursts at the television and verbal conflicts with his girlfriend.  He endorsed a fair relationship with his girlfriend, and good relationships with his children.  He reported a “hair-trigger temper”.  Veteran stated he worked as a DC Government Park and Recreation maintenance worker until he retired in March 2005.  He stated he was productive in his job but had difficulty relating to co-workers and management.  He stated he would like to work again but cannot due to physical limitations.  The examination report noted no impairment of thought process or communication, no delusions or hallucinations, appropriate behavior, and no current suicidal or homicidal thoughts or ideation.  The Veteran could maintain personal hygiene and basic activities of daily living, was oriented to person, place, and time, but stated he has difficulty remembering names of people in his own family and small details of daily events after 24 hours have passed, but was able to remember events from the distant past.  The Veteran denied the presence of obsessive or ritualistic behavior, but stated that he suffered panic attacks at night.  The examination report noted impaired impulse control and sleep impairment.  The examiner opined that the Veteran would be able to maintain gainful employment in a position that allowed him to work with limited demands for social interaction and which was not physically demanding on his painful shoulder.
An April 2011 VA examination noted the Veteran had several relationships which were not serious and that he has 1 true friend he talks to 2 to 3 times a week and sees 1 to 2 times a week.  He reported being very close with his family.  He reported that he mainly watches television, helps his girlfriend run errands, and goes to doctor appointments.  He reported a few physical fights with one of his girlfriends.  The examination report indicated the Veteran self-isolates, appropriately interacts with others, engages in social activities, is capable of basic activities of daily living, and can meet family responsibilities and work demands.  There was some impairment in thought process or communication as he sometimes misinterprets what people say to him.  The Veteran did not report any delusion or hallucinations, had no suicidal thoughts, ideation, plans or intent, suffered some short-term memory problems, but did not have any obsessive or ritualistic behavior which interfered with routine activities.  The Veteran reported panic attacks triggered by unfamiliar noises which he said occur “just about all the time” especially when stuck in traffic.  The Veteran reported impaired impulse control, and sleep impairment.  The examiner described the Veteran’s psychiatric symptoms as mild to moderate, but chronic and continuous.  The examination report indicated the Veteran was not unemployable.  The examiner stated the Veteran’s psychiatric symptoms do not impact his physical or sedentary employment. 
An April 2015 psychiatrist letter indicates the Veteran suffers from re-experiencing symptoms, avoidance of trauma related conversations, emotional detachment, hypervigilance, poor sleep, and irritability.  The psychiatrist noted the Veteran’s symptoms have affected his interpersonal relationships and his ability to sustain consistent employment.
An April 2015 DBQ noted a diagnosis for PTSD with a history of polysubstance abuse currently in remission.  The examiner noted the Veteran’s PTSD symptomatology caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner noted the Veteran lives alone, broke up with his girlfriend, does not socialize, and stays home much of the time.  The Veteran reported having nightmares and intrusive memories of combat.  He has poor motivation, irritability that interferes with social relations, and tends to isolate himself.  He denied depression, suicidal ideation, anxiety, and panic.  He described an inability to feel ordinary emotions.  The examination report noted symptomatology which included: chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; an inability to establish and maintain effective relationships.  The Veteran displayed impairment of thought process or communication, but no delusions or hallucinations, and behaved appropriately.  There was no current or past suicidal, homicidal thoughts, plans, ideation or intent, and the Veteran was able to maintain personal hygiene and basic activities of daily living.  He was oriented to person, place and time, and no memory loss or impairment was noted.  The examination report did not note obsessive or ritualistic behaviour which interfered with routine activities, or panic attacks.  The Veteran did report depression, depressed mood, and anxiety stating he sometimes does not want to get out of the bed in the morning and wishes “night would last forever.”  There was no indication of impaired impulse control, but the examination report noted sleep impairment.  The examiner indicated the Veteran could manage his own financial affairs.
For the period prior to May 27, 2015, the evidence is at least evenly balanced as to whether the Veteran’s disability picture more nearly approximates the criteria for a 70 percent rating.  The VA examination reports, DBQ, and psychiatrist letter provide evidence that the Veteran has PTSD symptoms listed in the 70 percent criteria including impaired impulse control, suicidal ideation, and difficulty adapting to stressful situations.  This evidence reflects significant impairment affecting social and occupational functioning in many areas of the Veteran’s life due to such symptoms.  As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to a rating of 70 percent is warranted for the entire appeal period.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
The Veteran is not, however, entitled to a higher, 100 percent rating for any portion of the appeal period.  The DBQs and VA examination reports do not indicate that the Veteran suffered from the following symptoms or their equivalent: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or persistent danger of hurting self or others.  While the Veteran has reported memory loss for names of close relatives in his January 2009 VA examination report, his more recent examinations indicate that his memory is intact.  Additionally, while the Veteran has broken up with his long-term girlfriend and stated he tends to self-isolate, he reported maintaining a good relationship with his family and one close friend which indicates that the symptoms and impairment did not more nearly approximate total social impairment.  The Veteran’s other symptoms and overall impairment thus reflect that his disability picture more closely approximates those contemplated by the 70 percent schedular rating for PTSD and not those in the criteria for a 100 percent rating.
The preponderance of the evidence thus reflects that the Veteran had neither the symptoms nor overall level of impairment that more nearly approximated the total occupational and social impairment required for a 100 percent rating for the entire period on appeal.  Therefore, for the period prior to May 27, 2015, a rating of 70 percent, but not higher is warranted, and a higher 100 percent rating is not warranted for any period on appeal.  The benefit of the doubt doctrine is thus not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.
13. TDIU
A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more; or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.
The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.  The issue is whether the veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”).  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).
In determining whether the veteran is entitled to a TDIU, neither the veteran’s non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The Court has held that the central inquiry in determining whether a veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  The test of individual unemployability is whether the veteran, because of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; Hatlestad, 5 Vet. App. 524.
The Veteran is currently in receipt of service connection for: PTSD, evaluated as 70 percent disabling from July 9, 2003; Parkinson’s disease with tremor, muscle rigidity and stiffness of right upper extremity and diabetic peripheral neuropathy, 40 percent disabling from March 16, 2010; diabetic nephropathy, 30 percent disabling from May 27, 2015; DMII, 20 percent disabling from September 29, 2009; right lower extremity peripheral neuropathy with sciatic nerve involvement, 20 percent disabling from June 5, 2012; left lower extremity peripheral neuropathy with sciatic nerve involvement, 20 percent disabling from June 5, 2012; left upper extremity diabetic peripheral neuropathy, 20 percent disabling from May 27, 2015; left lower extremity peripheral neuropathy with femoral nerve involvement, 20 percent disabling from May 27, 2015; right lower extremity peripheral neuropathy with femoral nerve involvement, 20 percent disabling from May 27, 2015; erectile dysfunction, noncompensable from September 29, 2009; right thigh abscess, 10 percent disabling from February 1, 2012; loss of sense of smell, noncompensable from June 4, 2015; loss of automatic movements, 10 percent disabling from June 4, 2015; and speech changes, 10 percent disabling from June 4, 2015.  The Veteran has a combined 70 percent disability rating from September 29, 2009, and is rated 100 percent disabled from May 27, 2015.  Thus, the Veteran is eligible for consideration for a TDIU on a schedular basis from September 29, 2009.  See 38 C.F.R. § 4.16 (a).
Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities.
A 21-8940 application submitted December 2008 indicated the Veteran became too disabled to work in the Spring of 2001 and that he last worked as a custodian for D.C. Government Parks and Recreation.  The application noted the Veteran completed one year of high school.  The Veteran indicated PTSD prevented him from securing or following any substantially gainful occupation.
A December 2010 examiner stated the Veteran has a high school diploma and could do limited driving, therefore his Parkinson’s disease does not render him unable to obtain or sustain gainful employment.
The Veteran stated during his April 2011 VA examination report that he is unable to work as a custodian because of the numbness and tingling in his feet caused by DMII which makes it difficult for him to stand for greater than 10 to 15 minutes, or walk greater than 1 block.
The Veteran’s 21-8940 application submitted October 2011 indicates the Veteran became too disabled to work in March 2005 due to his Parkinson’s disease, PTSD, DMII and peripheral neuropathy, and that he last worked as a sorter.  The Veteran completed 4 years of high school and completed HVAC training.
A June 2012 examiner stated the Veteran was unable to hold a job due to tremors, depression, forgetfulness, and slowed gait.
The Veteran stated that his daily routine is associated with pain, discomfort, loss of interest in daily affairs, dread at getting out of bed.  He reported a lack of interest in associating with people.
The evidence is at least evenly balanced as to whether the Veteran’s service connected disabilities rendered him unemployable.  The evidence supports a finding that his service-connected disabilities make it difficult for the Veteran to perform the requisite duties necessary for his profession.  The Veteran has previously worked as a custodian, a position that requires significant physical exertion, but the symptoms caused by his service connected disabilities, including tingling and numbness of his extremities, and impaired impulse control, suicidal ideation, and difficulty adapting to stressful situations make it difficult for the Veteran to work around people, or stand or walk for any extended amount of time, rendering employment in line with his experience infeasible.  The Veteran’s PTSD symptoms would also render the Veteran incapable of securing or following other types of employment.  Accordingly, for the period prior to May 27, 2015, the evidence is at least evenly balanced as to whether the Veteran’s service connected PTSD precludes him from securing or following a substantially gainful occupation.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.
The Veteran is in receipt of a 100 percent disability rating from May 27, 2015.  The Court has held that a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC) benefits pursuant to 38 U.S.C. § 1114 (s).  See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008).  Pursuant to 38 U.S.C. § 1114 (s), when a Veteran has a service-connected disability rated as total and has additional service connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1).  In Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008), the Court stated that a TDIU rating can qualify for compensation at the 38 U.S.C. § 1114 (s) rate, but only if the TDIU is based on a single disability.  In this case, the Veteran has been awarded TDIU prior to May 27, 2015 based on more than one disability, namely his service connected PTSD and DMII symptoms to include peripheral neuropathy of the right and left lower extremities involving the sciatic and femoral nerve, and right and left upper extremity peripheral neuropathy.  Additionally, the Veteran’s remaining disabilities which do not render the Veteran unable to secure or follow a substantially gainful occupation, do not combine to a 60 percent rating.  Therefore, the Veteran does not qualify for compensation at the 38 U.S.C. § 1114 (s) rate.


As a TDIU from May 27, 2015 would not benefit the Veteran, entitlement to a TDIU for the period from May 27, 2015 is moot.

 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Maddox, Associate Counsel