Citation Nr: 18159637 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 11-17 434 DATE: December 19, 2018 ORDER Service connection for a bilateral knee disability is denied. Service connection for dementia is denied. Service connection for tremors is denied. Service connection for atrial fibrillation is denied. An effective date earlier than February 25, 2013 for the award of service connection for coronary artery disease (CAD) is denied. A disability rating of 40 percent, but no higher, for diabetes mellitus is granted. Initial disability ratings in excess of 70 percent and 60 percent for peripheral neuropathy of the right and left upper extremities, respectively, are denied. Prior to April 8, 2014, initial disability ratings of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity, and 40 percent, but no higher, for peripheral neuropathy of the left lower extremity, are granted. Since April 8, 2014, disability ratings in excess of 40 percent for peripheral neuropathy of the right and left lower extremities are denied. An initial compensable disability rating for a chest scar is denied. An initial compensable disability rating for a left thigh scar is denied. REMANDED Service connection for a lumbar spine disability is remanded. A total disability rating based on individual unemployability (TDIU) prior to February 25, 2013 is remanded. FINDINGS OF FACT 1. A bilateral knee disability, including arthritis, was not shown in service, is not attributable to service, and was not manifest within one year of separation from service. 2. Dementia was not shown in service and is not attributable to service. 3. Tremors were not shown in service and are not attributable to service. 4. Atrial fibrillation, including as cardiovascular-renal disease, was not shown in service, is not attributable to service, and was not manifest within one year of separation from service. 5. In April 1967, the Veteran separated from service; a claim for service connection for a heart disability was not received within one year of date of discharge. 6. On February 25, 2014, VA received the Veteran’s informal claim for service connection for a heart disability. 7. There were no informal or formal claims, or written intent to file a claim for service connection for a heart disability dated prior to the February 25, 2014 claim. 8. The RO awarded service connection for CAD effective February 25, 2013, one year prior to the date of claim in accordance with the provisions of 38 C.F.R. § 3.114 regarding liberalizing laws. 9. Throughout the appeal period, the Veteran’s diabetes required insulin, a restricted diet, and a regulation of activities. 10. The Veteran’s peripheral neuropathy of the right and left upper extremities was not manifested by complete paralysis of all radicular groups. 11. Prior to April 8, 2014, the Veteran’s peripheral neuropathy of the bilateral lower extremities was manifested by moderately severe incomplete paralysis of the sciatic nerve. 12. Since April 8, 2014, the Veteran’s peripheral neuropathy of the bilateral lower extremities was not manifested by severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. 13. The chest scar had no disabling effects. 14. The left thigh scar had no disabling effects. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for dementia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for tremors have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for atrial fibrillation have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for the assignment of an effective date earlier than February 25, 2013 for the grant of service connection for CAD are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.114, 3.400, 3.816. 6. The criteria for a 40 percent rating, but no higher, for diabetes mellitus have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. 7. The criteria for a rating in excess of 70 percent for peripheral neuropathy of the right upper extremity, and in excess of 60 percent for peripheral neuropathy of the left upper extremity, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.124a, DC 8513. 8. Prior to April 8, 2014, the criteria for a 40 percent rating, but no higher, for peripheral neuropathy of the right lower extremity, and a 40 percent rating, but no higher, for peripheral neuropathy of the left lower extremity, were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.124a, DC 8520. 9. Since April 8, 2014, the criteria for a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity, and in excess of 40 percent for peripheral neuropathy of the left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.124a, DC 8520. 10. The criteria for the assignment of a compensable disability rating for the chest scar are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.118, DC 7805. 11. The criteria for the assignment of a compensable disability rating for the left thigh scar are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1958 to April 1967 in the United States Army, with service in the Republic of Vietnam. He died in May 2015. For claimants who died on or after October 10, 2008, 38 U.S.C. § 5121A permits an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion. The appellant, who is the Veteran's widow, has been substituted for him pursuant to 38 U.S.C. § 5121A. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2010, February 2012, and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal involves a complicated procedural history. As a matter of clarification, and in response to the appellant’s representative’s May 2018 inquiry, the majority of the claims on appeal stem from the March 2015 rating decision; the appellant perfected an appeal of these claims after the Veteran’s death. The claims not arising from the March 2015 rating decision include the claims for service connection for a lumbar spine disability, a higher rating for diabetes mellitus, higher ratings for peripheral neuropathy of the bilateral lower extremities, and a TDIU. These matters arose from the May 2010 and February 2012 rating decisions, and were included in a September 2014 Board decision and April 2015 decision of the United States Court of Appeals for Veterans Claims (Court). These claims were dismissed by the Board in October 2015 due to the death of the Veteran. However, substitution was thereafter granted in a January 2018 Board decision, and the claims remained unresolved. While the Board appears to have inadvertently overlooked these claims in January 2018 and did not address them, they will now be adjudicated here. With further regard to the Board’s January 2018 decision, it appears the Board also inadvertently included a claim for service connection for pes planus as part of the appeal. A claim for pes planus was never adjudicated by the RO, and is not in appellate status. It will not be addressed here. Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain chronic diseases, such as arthritis and cardiovascular-renal disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Additionally, ischemic heart disease (IHD) is included among the diseases eligible for presumptive service connection as due to herbicide agent exposure set forth in 38 C.F.R. §3.309(e). Personnel records show that the Veteran served in Vietnam and thus it is presumed he was exposed to herbicide agents during service. It is unclear whether the Veteran’s atrial fibrillation qualified as IHD. Regardless however, service connection was previously granted for IHD. See March 2015 Rating Decision (awarding service connection for CAD as IHD). The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. To determine what constitutes the same disability or manifestation for purposes of pyramiding, the Board looks to the symptomatology of the conditions; if the symptomatology of one condition is duplicative of or overlapping with the other condition, awarding separate ratings would constitute pyramiding. If, however, the symptomatology is distinct and separate, separate evaluations are allowed. See, e.g., Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Here, the Board cannot distinguish the symptoms of atrial fibrillation from those of his service-connected IHD; they are not separate and distinct. To award separate ratings would constitute pyramiding. As such, consideration of the claim for atrial fibrillation based on presumptive service connection due to herbicide agent exposure is not indicated. Direct service connection for atrial fibrillation, or any other disability on appeal, as due to herbicide agent exposure has not been raised. Similarly, Parkinson’s disease is also included among the diseases eligible for presumptive service connection as due to herbicide agent exposure set forth in 38 C.F.R. §3.309(e). To the extent the Veteran’s dementia and tremors could have been manifestations of Parkinson’s disease, a claim for service connection for Parkinson’s disease was dismissed by the Board in a final September 2014 decision. As such, there is no claim for Parkinson’s disease on appeal. The present claims for dementia and tremors are separate matters do not implicate the provisions of 38 C.F.R. §3.309(e). Turning to the merits of the claims, treatment records generated during the Veteran’s lifetime documented degenerative changes of both knees (May 2013), an essential tremor (December 2011), and atrial fibrillation (December 2014). Multiple treatment records document possible dementia not otherwise specified (September 2013), and doubt will be resolved in the appellant’s favor as to a diagnosis in this regard. No abnormalities involving the knees, dementia, tremors, or atrial fibrillation were noted on the Veteran’s entry into service and he raised no pertinent complaints on his Report of Medical History. The service treatment records (STRs) show no complaints, treatment, or documentation pertaining to the knees (including arthritis), dementia, tremors, or atrial fibrillation (including as cardiovascular-renal disease). On his April 1967 separation examination, there were no abnormalities of the lower extremities or musculoskeletal system, neurological system, or heart. There are no records showing a disability of the knees (including arthritis), dementia, tremors, or atrial fibrillation (or any cardiovascular-renal disease) dated from within one year of discharge. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that the Veteran's knee disabilities, dementia, tremors, or atrial fibrillation were related to his active military service. With particular regard to the tremors, the term "essential" indicates that the tremors had an unknown cause. See Dorland's Illustrated Medical Dictionary 649 (32d ed. 2012). The disabilities were not found in service or within one year of separation from service; rather, the evidence reflects that the disabilities were not shown until years after service discharge. There were no reports of any pertinent disability at discharge and the disabilities were not found on his service discharge examination. The fact that he sought treatment for other conditions in or following service, but not knee disabilities, dementia, tremors, or atrial fibrillation weighs against the credibility of any statements that the disorders persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The record does not include an opinion on the matter of service connection. However, in addition to the lack of credible lay or medical evidence showing that the knee disabilities, dementia, tremors, or atrial fibrillation were incurred during service, the evidence does not link the disorders to service. As there were no relevant complaints, treatment, or diagnoses in service, there is no injury, disease, or event to which a current disorder could be related. Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Earlier Effective Date Claim Following the Veteran’s death, the appellant perfected an appeal of entitlement to an effective date earlier than the currently assigned February 25, 2013 date for the award of service connection for CAD. It is unclear why she believes this date is incorrect or what date is sought. A claim is 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). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As this appeal was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). In cases involving presumptive service connection due to herbicide agent exposure, there is an exception to the provisions set forth above. 38 C.F.R. § 3.816 sets forth the effective date rules required by orders of the United States District Court in the class-action case of Nehmer v. U. S. Department of Veterans Affairs. See Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer et al v. Veterans Admin. of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002) (Nehmer III). For purposes of this section, a Nehmer class member includes a Vietnam veteran who has a covered herbicide agent disease. Pursuant to 38 C.F.R. § 3.816(c), if a Nehmer class member is entitled to disability compensation for a covered herbicide agent disease, there are special effective date rules that apply in the following circumstances: (1) where VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; (2) where the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease; and (3) where the class member's claim was received within one year from the date of the class member's separation from service. If the above requirements are not met, the effective date of the award shall be determined in accordance with 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). The final rule made clear that the effective dates of awards of IHD under 38 C.F.R. § 3.309(e) are governed by the Nehmer provisions. See 75 Fed. Reg. at 53203. IHD was added to the list of presumptive disabilities effective August 31, 2010. See 75 Fed. Reg. 53, 202 (August 31, 2010). The Veteran separated from service in April 1967. A claim for service connection for a heart disability was not received within one year of date of discharge. On February 25, 2014, VA received a letter from the Veteran’s representative, stating that he was suffering from a cardiac impairment related to military service. In the March 2015 rating decision on appeal, the RO granted service connection for CAD based on presumptive service connection as due to herbicide agent exposure. The RO assigned a 100 percent rating, effective February 25, 2013, which was one year prior to the date of claim. While the Veteran died shortly after this rating decision was issued, the appellant perfected a timely appeal of the effective date assigned in the March 2015 rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). There is no dispute that the Veteran served in the Republic of Vietnam and was granted presumptive service connection for heart disease based on his exposure to herbicide agents during such service. However, the provisions of 38 C.F.R. § 3.816 do not apply. VA did not deny compensation for any heart disability in a decision issued between September 25, 1985 and May 3, 1989 (38 C.F.R. § 3.816(c)(1)), a claim for a heart disability was not pending on May 3, 1989 or received between that date and August 31, 2010 (38 C.F.R. § 3.816(c)(2)), and a claim for a heart disability was not received within one year of the Veteran’s separation from service (38 C.F.R. § 3.816(c)(3)). As such, the effective date of the award shall be determined in accordance with 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). 38 C.F.R. § 3.114 addresses liberalizing laws. The pertinent provision under this section provides that where a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue (as here), benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). 38 C.F.R. § 3.400 provides that the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). Additionally, in a claim for increase or to reopen, a report of examination or hospitalization may be accepted as an informal claim for benefits, but the provisions of the applicable regulation do not apply here. 38 C.F.R. § 3.157 (b). Because the current effective date of service connection was based upon the date his February 25, 2014 claim was received (and implemented one year prior to this date in accordance with C.F.R. § 3.114(a)(3)), the question before the Board is whether there are any earlier claims upon which an earlier effective date of service connection may be granted. On close review of the record, however, the Board can point to no communication prior to the February 25, 2014 claim that could be interpreted as an informal claim for service connection for a heart disability. No mention of any heart problem was made prior to this date. It was not until his representative’s February 25, 2014 letter that the Veteran expressed any intent to file a claim for service connection for a heart disability. In fact, in a July 2011 letter to the Veteran, the RO notified him that IHD had been documented in a June 2011 VA examination report, and invited him to file a claim for service connection for IHD. A form for filing the claim was attached. The RO advised him that no further action would be taken unless he responded. He did not respond. Thus, the only date that could serve as a basis for the award of service connection is one year prior to the date of receipt of the Veteran's February 25, 2014 claim for service connection. The exact date on which entitlement arose need not be ascertained in order to conclude that the February 25, 2013 date selected by the RO is the earliest possible effective date here. The reason for this is that, to the extent that entitlement arose prior to February 25, 2013, the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after February 25, 2013 would similarly not entitle the Veteran to an effective date earlier than that already assigned. There is simply no legal entitlement to an earlier effective date for the award of service connection for the Veteran’s CAD. As such, the claim must be denied. Higher Rating Claims Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board's analysis will focus specifically on what evidence is needed to substantiate the claims, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here largely consists of the VA examination reports discussed below. The Veteran’s VA treatment records and private medical records were considered, but generally do not contain the specific information sufficient for rating the disabilities under the applicable rating criteria. Diabetes Mellitus In a September 2009 unappealed rating decision, the RO granted service connection for diabetes and assigned a 20 percent rating under 38 C.F.R. § 4.119, DC 7913. In the May 2010 rating decision on appeal, the 20 percent rating was continued. In February 2014, the Board remanded the claim for further development. In September 2014, the Board denied the claim. The Veteran appealed the Board’s decision to the Court. In April 2015, the Court vacated the September 2014 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). The Court found the Board provided inadequate findings regarding whether there was a “regulation of activities”, a criterion required for the next higher rating of 40 percent. Specifically, the Court cited a December 2012 “wheelchair clinic” treatment record showing that the Veteran required an electric wheelchair due to his diabetic peripheral neuropathy, and that a manual wheelchair would not suffice. Also, in a May 2013 Diabetes Impairment Questionnaire (inadvertently cited by the Court as from March 2013), an examiner found he could not sit, stand, or walk for longer than one hour in an eight-hour day. In October 2015, the Board dismissed the claim due to the death of the Veteran. Thereafter, the appellant was recognized as his substitute in the completion of this appeal. Under DC 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes 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 the 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. “Regulation of activities” means “avoiding strenuous occupational and recreational activities.” Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Additionally, 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. Noncompensable complications are considered part of the diabetic process under DC 7913. Here, the probative evidence includes the December 2012 and May 2013 records discussed by the Court, as well as a June 2011 VA examination report, a February 2014 Diabetes Questionnaire, and a December 2014 VA examination report. Considering the pertinent evidence in light of the governing legal authority, and resolving all doubt in favor of the appellant, the Board finds that a 40 percent rating is warranted throughout the appeal period. It is clear the Veteran required a restricted diet, as this was needed to qualify for his assigned 20 percent rating. He also required insulin, as shown in the February 2014 Diabetes Questionnaire, and in various treatment notes, including those dated from December 2013 and April 2014 for example. As for a regulation of activities, as pointed out by the Court, the December 2012 “wheelchair clinic” treatment record showed that the Veteran required an electric wheelchair due to his diabetic peripheral neuropathy, and a manual wheelchair would not have sufficed. In the May 2013 Diabetes Questionnaire, the examiner opined that the Veteran could not work due to diabetes and diabetic complications. He could not sit, stand, or walk for longer than one hour in an eight-hour day. He had restrictions on lifting and carrying due to diabetes. In the February 2014 Diabetes Questionnaire, another examiner also opined that he could not work due to diabetes and other medical problems. He had restrictions on lifting and carrying due to diabetes. On VA examination in December 2014, the examiner found that diabetic complications caused decreased dexterity and difficulty with ambulation. The Board finds that this evidence shows that the Veteran’s diabetes caused him to avoid occupational and recreational activities, or in other words, there was a regulation of activities. Camacho, 21 Vet. App. at 363. Resolving any doubt in the appellant’s favor, the criteria for a 40 percent rating were met throughout the appeal period. However, the preponderance of the evidence is against a rating in excess of 40 percent. The record does not show episodes of ketoacidosis or hypoglycemic reactions that required 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. The June 2011 and May 2013 examiners explicitly stated there had been no episodes of ketoacidosis or hypoglycemic reactions. Ketoacidosis or hypoglycemic reactions are not otherwise shown by the medical record. Further, the record, including the aforementioned examination reports and all of the treatment notes, do not show any diabetic complications, compensable or otherwise, other than his already-service connected peripheral neuropathy of the bilateral upper and lower extremities. In this vein, the matters of higher ratings for peripheral neuropathy of all extremities are on appeal and are adjudicated below. In contrast, as an appeal of the effective dates assigned for peripheral neuropathy was not taken by the appellant, it is not within the Board’s jurisdiction to determine whether service connection for peripheral neuropathy was warranted prior to the effective dates set by the RO. Indeed, in the April 2015 Joint Motion, while clearly aware of the fact that the Board would be readjudicating the matter of a higher rating for diabetes, the Court provided guidance regarding effective dates for peripheral neuropathy, “should [the] appellant pursue an appeal of the March 4, 2015, VA rating decision for an earlier effective date.” Joint Motion, p.3 (emphasis added). This discussion by the Court supports the approach taken here. For all the foregoing reasons, the Board finds that a 40 percent, but no higher, rating was warranted for the Veteran's diabetes, but finds no basis for the assignment of an even higher rating. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Peripheral Neuropathy of the Bilateral Upper Extremities In the March 2015 rating decision on appeal, the RO granted service connection for peripheral neuropathy of the upper extremities. A 70 percent rating was assigned for the right arm, and a 60 percent rating was assigned for the left arm. The Veteran’s peripheral neuropathy of the bilateral upper extremities has been rated under Diagnostic Code 8513. Under this code, ratings are assigned dependent upon which extremity is involved, the dominant or “major” side, or the “minor” side. The evidence shows that the Veteran was right-hand dominant. For the right arm, a higher, and maximum, rating of 90 percent was warranted only with evidence of paralysis of all radicular groups. Similarly, for the left arm, a higher and maximum rating of 80 percent was also warranted only with evidence of paralysis of all radicular groups. Ratings of 70 percent (for the major side) and 60 percent (for the minor side) are the maximum available under all other diagnostic codes pertaining to diseases of the peripheral nerves of the upper extremities. Here, the probative evidence includes the June 2011 VA examination report, May 2013 and February 2014 Diabetes Questionnaires, and a December 2014 VA examination report. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against the claims. The record does not show there was complete paralysis of all radicular groups in either the right or left upper extremity. The June 2011 VA examiner did not find there was peripheral neuropathy of the upper extremities. The May 2013 examiner found mild peripheral neuropathy of the right and left upper extremities. The February 2014 examiner left blank the section of the report pertaining to peripheral neuropathy of the upper extremities, while completing that pertaining to the lower extremities. The December 2014 examiner found there was no constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the bilateral upper extremities. Tests of strength, deep tendon reflexes, light touch, position sensation, vibration sensation, and cold sensation were conducted. The examiner explicitly determined that the Veteran did not have complete paralysis of the radial nerve, median nerve, or ulnar nerve. For all the foregoing reasons, the Board finds the preponderance of the evidence is against ratings higher than 70 percent and 60 percent for peripheral neuropathy of the right and left upper extremities, respectively. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Peripheral Neuropathy of the Bilateral Lower Extremities In the September 2014 decision, the Board granted separate, 10 percent ratings for peripheral neuropathy of the right and left lower extremities, in connection with the claim for a higher rating for diabetes mellitus that was on appeal. The Veteran appealed the Board’s decision to the Court. In March 2015, the RO implemented the Board’s award of service connection and further assigned “staged ratings” to each of the legs. For the right leg, the Veteran was awarded a 10 percent rating from September 24, 2010, a 20 percent rating from May 20, 2011, and a 40 percent rating from April 8, 2014. For the left leg, he was awarded a 10 percent rating from September 24, 2010, a 20 percent rating from October 6, 2011, and a 40 percent rating from April 8, 2014. In April 2015, the Court vacated the September 2014 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). The Court found the Board provided inadequate findings regarding the severity of the disabilities. Specifically, the Court noted that treating clinicians had characterized the disabilities as severe and moderate, and noted that he required a wheelchair for mobility. In October 2015, the Board dismissed the claims due to the death of the Veteran. Thereafter, the appellant was recognized as his substitute in the completion of the appeal. Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating, moderate incomplete paralysis warrants a 20 percent rating, moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. An 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). The words “mild,” “moderate,” 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.” 38 C.F.R. § 4.6. Mild is generally defined as "not being or involving what is extreme" or "not severe." Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003). Moderate is generally defined as "tending toward the mean or average amount." Id. at 798. Severe is generally defined as "of a great degree" or "serious." Id. at 1140. Here, the probative evidence includes the June 2011 VA examination report, May 2013 and February 2014 Diabetes Questionnaires, and a December 2014 VA examination report, as well as hearing testimony and various treatment records. Considering the pertinent evidence in light of the governing legal authority, and resolving all doubt in favor of the appellant, the Board finds that a 40 percent rating is warranted throughout the appeal period for each leg, thereby eliminating the various staged ratings currently assigned. The record shows the peripheral neuropathy of each leg was moderately severe throughout the appeal period. In a September 2010 treatment record, an examiner noted the Veteran “continue[d] to have drastic worsening neuropathy that is now causing him to have falls.” He also had pain with the neuropathy, and physical therapy had not helped. In a May 2011 treatment record, he had trouble climbing stairs, had muscle aches, and tingling in the toes. The examiner noted, “he is struggling with finding a medium between treating the pain and not losing balance.” On VA examination in June 2011, the examiner noted he had a decreased vibratory sense in the left foot and ankle, and no vibration sense on the right foot and ankle. In a December 2012 treatment record, an examiner noted he could not ambulate 300 feet safely. In May 2013, the examiner opined that the peripheral neuropathy of both the right and left legs was “severe.” In February 2014, the examiner opined that the peripheral neuropathy of both the right and left legs was “moderate.” At the February 2014 hearing, the Veteran testified that he felt his disabilities would be moderate or severe, causing pain, tingling, and the use of a wheelchair. On VA examination in December 2014, the examiner found there was moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness in the bilateral lower extremities. Tests of strength, deep tendon reflexes, light touch, position sensation, vibration sensation, and cold sensation were conducted. The examiner explicitly characterized the disability as causing “moderate” incomplete paralysis of the sciatic nerve bilaterally. The femoral nerve was normal. As pointed out by the Court, the record shows the peripheral neuropathy of the legs was characterized as both “moderate” and “severe.” In consideration of the Court’s findings and the above evidence, and resolving any doubt in the appellant’s favor, the Board finds that the disabilities were moderately severe. The criteria for a 40 percent rating of the disability were met throughout the appeal period. However, the preponderance of the evidence is against a rating in excess of 40 percent at any point in the appeal period. The next higher rating of 60 percent requires evidence of marked muscular atrophy. Muscular atrophy, marked or otherwise, was not documented by any treating provider or examiner. To the contrary, muscle tone was normal in a September 2010 treatment record, and muscle strength was 5/5 in the lower extremities in May 2011, October 2011, and June 2012 treatment records. In a July 2013 treatment record, muscle strength was 5/5 with no gross deformities. The December 2014 VA examiner explicitly stated there was no muscle atrophy present. For all the foregoing reasons, the Board finds that 40 percent, but no higher, ratings were warranted for the Veteran's peripheral neuropathy of the bilateral lower extremities throughout the appeal period, but finds no basis for the assignment of even higher ratings. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Chest Scar & Left Thigh Scar In the March 2015 rating decision on appeal, the RO granted service connection for a chest scar and left thigh scar, status-post coronary artery bypass graft surgery. Noncompensable ratings were assigned for each scar. The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Veteran’s scars have been rated under Diagnostic Code 7805, which was not changed by the August 2018 revision. Under this code, ratings are assigned based on any disabling effects not considered by the other scar codes (DCs 7800-7804). DC 7800, both prior to and since August 2018, pertains to scars and disfigurement of the head, face, or neck. Diagnostic Code 7801 applies to scars not of the head, face, or neck, that are deep and nonlinear (prior to August 2018), or associated with underlying soft tissue damage (since August 2018); a compensable rating requires evidence of a scar of at least 6 inches. Diagnostic Code 7802 provides a compensable rating with evidence of a superficial, nonlinear scar not of the head, face, or neck, that is of an area 144 square inches or greater (prior to August 2018). It provides a compensable rating with evidence of a burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage that is of an area 144 square inches or greater (since August 2018). DC 7804, both prior to and since August 2018, pertains to scars that are unstable or painful. The probative evidence as to these scars is limited, and consists of the December 2014 VA examination report. In the report, the Veteran was noted to have undergone a coronary artery bypass graft with residual scarring in 2001. Medical records following this procedure do not contain information regarding the scars relevant to the rating criteria. The December 2014 examiner diagnosed a chest scar measuring 24 centimeters x 2 centimeters, and a medial left thigh scar measuring 22 centimeters by 0.5 centimeters. Neither scar was painful, unstable, or of a total area greater than 39 square centimeters (6 square inches). No disabling effects were noted, and the examiner found there were no other pertinent physical findings, complications, signs, or symptoms. The remainder of the medical record is similarly silent as to any disabling effects of the Veteran’s scars, and does not raise the possibility of a rating for the scars under any other diagnostic code. As such, considering the pertinent evidence in light of the governing legal authority, the Board must find the preponderance of the evidence is against the claims. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND Lumbar spine In September 2014, the Board remanded the claim in order to obtain a medical opinion. Prior to his death, he and his representative reported that his lumbar spine disability was related to an in-service crush injury which resulted in a pelvic fracture, an accident clearly documented in the service treatment records. This medical opinion was never obtained and the claim must be remanded for compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). TDIU As an initial matter of clarification, the Veteran was awarded a combined, 100 percent schedular disability rating from February 25, 2013 onward, which renders moot the issue of entitlement to a TDIU beyond February 25, 2013. See Herlehy v. Principi, 15 Vet. App. 33 (2001). In this regard, the Board has considered the United States Court of Appeals for Veterans Claims’ (Court’s) holding in Bradley v. Peake, 22 Vet. App. 280 (2008), however, as the Veteran was also awarded special monthly compensation (SMC) under 38 U.S.C. § 1114 (s)) from February 25, 2013 onward, the concerns addressed in Bradley are not present in the current case, and the Board need not further address whether a TDIU is warranted beyond February 25, 2013. However, as the Veteran had a claim for a TDIU pending prior to this date, the matter of a TDIU prior to February 25, 2013 remains on appeal. The TDIU claim must now be remanded for two reasons. First, because a decision on the lumbar spine claim could significantly impact a decision on the claim for a TDIU, the issues are inextricably intertwined. Second, in September 2014, the Board granted service connection for posttraumatic stress disorder (PTSD). Thereafter, the RO never implemented this award; an effective date and disability rating was never established. Before the matter of a TDIU can be adjudicated, it must be ascertained whether the Veteran was service-connected for PTSD during the relevent time period. Also, the rating assigned for the disability may impact whether the schedular criteria for a TDIU prior to February 25, 2013 were met, under 38 C.F.R. § 4.16. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion addressing the nature and etiology of the Veteran’s then-lumbar spine disability. The examiner must opine on whether it is at least as likely as not that the lumbar spine disability was related to an in-service injury, event, or disease, including the in-service crush injury that resulted in a pelvic fracture. In rendering his/her opinion, the examiner must consider the August and September 1960 service treatment records documenting the crush injury and reports of complications from a spinal fusion operation in 2007. 2. Implement the Board’s September 2014 award of service connection for PTSD. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel