Citation Nr: 18157631 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-35 594 DATE: December 13, 2018 ORDER Entitlement to an initial rating of 10 percent for bilateral pes planus is granted. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type II is denied. Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy, left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy, right lower extremity is denied. Entitlement to an effective date prior to October 8, 2015 for the grant of service connection for bilateral pes planus is denied. Entitlement to an effective date prior to October 8, 2014 for the grant of service connection for diabetes mellitus type II is denied. Entitlement to an effective date prior to October 8, 2015 for the grant of service connection for diabetic peripheral neuropathy, left lower extremity is denied. Entitlement to an effective date prior to October 8, 2015 for the grant of service connection for diabetic peripheral neuropathy, right lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus is manifested by moderate symptoms, with weight-bearing line over or medial to great toe and pain on use of the feet. 2. The Veteran’s diabetes mellitus type II is manifested by requiring insulin and restricted diet, but no restriction of activities. 3. Diabetic peripheral neuropathy, left lower extremity, has been manifested by numbness resulting in mild incomplete paralysis of the sciatic nerve. 4. Diabetic peripheral neuropathy, right lower extremity, has been manifested by numbness resulting in mild incomplete paralysis of the sciatic nerve. 5. The intent to file for the Veteran’s only claim for service connection for bilateral pes planus was received on October 8, 2015. 6. The intent to file for the Veteran’s only claim for service connection for diabetes mellitus, type II, was received on October 8, 2015. He had diabetes more than one year prior to the effective date of a liberalizing VA issue. 7. The intent to file for the Veteran’s only claim for service connection for diabetic peripheral neuropathy, left lower extremity was received on October 8, 2015. 8. The intent to file for the Veteran’s only claim for service connection for diabetic peripheral neuropathy, right lower extremity was received on October 8, 2015. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for bilateral pes planus are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for an initial rating in excess of 20 percent for diabetes mellitus type II have not been met 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 7913. 3. The criteria for a rating in excess of 10 for diabetic neuropathy, 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, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 10 for diabetic neuropathy, 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, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. The criteria for an effective date prior to October 8, 2015 for the grant of service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date prior to October 8, 2014 for the grant of service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. 7. The criteria for an effective date prior to October 8, 2015 for the grant of service connection for diabetic peripheral neuropathy, left lower extremity have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. 8. The criteria for an effective date prior to October 8, 2015 for the grant of service connection for diabetic peripheral neuropathy, right lower extremity have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to July 1991. Increased Rating Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C. § 5107 (b). A veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable rating for bilateral pes planus The Veteran’s pes planus is currently rated under Diagnostic Code 5276, flatfoot, acquired, which provides a noncompensable rating for mild symptoms relieved by built-up shoes or arch supports. A noncompensable rating is provided for “mild” symptoms relieved by built-up shoe or arch support. 10 percent rating is provided for “moderate” unilateral or bilateral disability with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet. A 30 percent rating is provided for “severe” bilateral disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is assigned for “pronounced” bilateral disability, with marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board observes that the words “moderate,” “moderately severe,” “marked,” “pronounced,” and “severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. The Board observes in passing that “moderate” is generally defined as “of average or medium quality, amount, scope, range, etc.” See Webster’s New World Dictionary 871 (1988). “Severe” is generally defined as “of a great degree: serious.” Id. at 1078. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The Veteran’s bilateral pes planus is currently assigned a noncompensable rating under Diagnostic Code 5276. The Veteran alleges this does not adequately reflect the severity of his condition. The Veteran received a VA examination in January 2016. The examiner noted pain on use of feet and pain accentuated on use. There was no pain on manipulation of the feet. The Veteran had orthotics that relieved the symptoms. The weight-bearing line fell over or was medial to the great toe bilaterally. No indication of swelling on use, no extreme tenderness of plantar surface of one or both feet, no marked deformity were found, no lower extremity deformity other than pes planus causing alteration of the weight bearing line, no inward bowing of the Achilles tendon, and no marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran reported flare-ups that occasionally require him to sit in a recliner or lay in bed. The examination was not conducted during a flare-up. The examiner stated that the examination was neither medically consistent or inconsistent with the Veteran’s statements regarding functional loss during flare-ups. The Board finds that the evidence of record indicates that the Veteran’s bilateral pes planus warrants a 10 percent rating. The examiner noted pain on use which was relieved by orthotics. However, the examiner also noted that the weight-bearing line was over or medial to the great toe bilaterally, which warrants a 10 percent rating. Although the Veteran reported flare-ups, they were infrequent and were not representative of his overall condition. A higher rating of 30 percent is not warranted unless the symptoms are severe. There was no evidence of marked deformity, pain on manipulation, swelling on use, or characteristic callosities. Therefore, a rating in excess of 10 percent is not warranted. The initial rating is increased to 10 percent, but no higher. 2. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type II The Veteran’s diabetes mellitus type II (diabetes) is rated at 20 percent under DC 7913 of 38 C.F.R. § 4.119. Under DC 7913, a 40 percent rating is warranted where treatment requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted where treatment requires 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 when diabetes requires 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. 38 C.F.R. § 4.119, DC 7913. Under this provision, “regulation of activities” means “avoiding strenuous occupational and recreational activities.” Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Note (1) to DC 7913 provides that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent rating, and that noncompensable complications are considered part of the diabetic process under DC 7913. The Veteran’s complications of peripheral neuropathy of the lower extremities are addressed separately below. The Veteran received a VA examination in January 2016. The examiner found that the Veteran’s symptoms were managed by restricted diet and a prescribed oral hypoglycemic agent. No regulation of activities was required. There were no hospitalizations for hypoglycemia in the prior 12 months, and the Veteran visited his diabetic care provider less than two times per month. Treatment records show that the Veteran began taking insulin in February 2016. At no point has a physician advised the Veteran to restrict activities to manage his diabetes. The Board finds that the Veteran’s symptoms throughout the period on appeal do not warrant a rating in excess of 20 percent. To warrant a rating of 40 percent, there must be regulation of activities. Neither the Veteran’s VA examination nor his treatment records indicate that regulation of activities has been required or advised at any point. Nor has the Veteran alleged as such. Further, there have been no episodes of ketoacidosis or hypoglycemic reactions that required hospitalization or twice monthly visits to his care provider. In sum, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for diabetes. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy, left lower extremity 4. Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy, right lower extremity As the analysis for the right and left lower extremities is substantially the same, they will be discussed together. Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Additional guidance is provided in 38 C.F.R. §§ 4.120 and 4.124. The terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Treatment records during the appeal period include complaints of numbness. The Veteran received a peripheral nerves examination in January 2016. The Veteran reported burning and pins and needles sensation on the bottoms of the feet and starting to affect the tops. The examiner noted mild paresthesias and/or dysesthesias bilaterally. Muscle strength testing was normal, and there was no muscle atrophy. Upon examination, reflexes were normal. There was no decreased sensation in either lower extremity, and there were no trophic changes. The examiner found mild incomplete paralysis of the sciatic nerve bilaterally. To warrant a rating of 20 percent, the Veteran’s bilateral lower extremity diabetic peripheral neuropathy would need to be moderate. Based on the evidence of record, the Board finds that an increased rating in excess of 10 percent for the bilateral lower extremities is not warranted at any time during the appeal period, as the Veteran’s overall level of symptomatology does not more nearly approximate the level of severity contemplated by a 20 percent rating. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a). Subsection (b) states: (1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the Veteran’s discharge or release if application therefor is received within one year from such date of discharge or release. (2) (A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 38 U.S.C. § 5110 (b) (2012). During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,600 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155 (a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 5. Entitlement to an effective date prior to October 8, 2015 for the grant of service connection for bilateral pes planus The Veteran separated from service in July 1991. Although he submitted several applications for disability benefits in the intervening years, the first to mention pes planus was submitted in December 2015, two months after the Veteran submitted his intent to file on October 8, 2015. There is no informal claim prior to March 24, 2015 or formal claim prior to October 8, 2015 which would warrant an earlier effective date. 6. Entitlement to an effective date prior to October 8, 2014 for the grant of service connection for diabetes mellitus type II The Veteran separated from service in July 1991. Although he submitted several applications for disability benefits in the intervening years, the first to mention diabetes was submitted in December 2015, two months after the Veteran submitted his intent to file on October 8, 2015. The law provides that an earlier effective date may be assigned when a benefit is granted on the basis of a liberalizing law or VA issue. VA has determined that the presumption of diabetes based on exposure to herbicide agents was a liberalizing VA issue. Diabetes existed prior to the date of the liberalizing VA issue; the disability continued and he eventually filed a claim. The provisions of 38 U.S.C. § 5110 (g) are applicable and the effective date is one year prior to the receipt of the claim, which is the currently assigned October 8, 2014. An effective date prior to October 8, 2014 is not warranted. 7. Entitlement to an effective date prior to October 8, 2015 for the grant of service connection for diabetic peripheral neuropathy, left lower extremity 8. Entitlement to an effective date prior to October 8, 2015 for the grant of service connection for diabetic peripheral neuropathy, right lower extremity The Veteran separated from service in July 1991. Although he submitted several applications for disability benefits in the intervening years, the first to mention diabetic peripheral neuropathy was submitted in December 2015, two months after the Veteran submitted his intent to file on October 8, 2015. The first mention of peripheral neuropathy in the Veteran’s medical records is from September 2015. An earlier effective date is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel