Citation Nr: 1807518 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-27 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 40 percent prior to April 30, 2014, and in excess of 20 percent thereafter, for diabetes mellitus. 2. Entitlement to an initial rating in excess of 10 percent prior to April 30, 2014, and in excess of 20 percent thereafter, for right lower extremity peripheral neuropathy. 3. Entitlement to an initial rating in excess of 10 percent prior to April 30, 2014, and in excess of 20 percent thereafter, for left lower extremity peripheral neuropathy. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from September 1977 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Nashville Regional Office (RO) of the Department of Veterans Affairs (VA). A May 2014 rating decision decreased the Veteran's rating for diabetes mellitus from 40 percent to 20 percent, effective April 30, 2014. However, as the rating action that implemented the 20 percent diabetes mellitus rating from April 30, 2014 did not change the Veteran's combined disability rating, which actually increased from 80 percent to 90 percent from April 30, 2014, the assignment of the decreased diabetes mellitus rating of 20 percent did not result in a reduction of compensation payments, and the procedural safeguards of 38 C.F.R. § 3.105 (e) did not apply. Thus, the issues are characterized as reflected on the title page. In November 2016, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDINGS OF FACT 1. Throughout the course of the appeal, treatment of the Veteran's diabetes mellitus has required restricted diet, insulin, and regulation of activities, but the diabetes mellitus has not caused episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 2. Prior to April 30, 2014, the Veteran's right and left lower extremity peripheral neuropathies were shown to cause mild incomplete paralysis of the sciatic nerve; moderate, moderately severe, or severe incomplete paralysis or complete paralysis was not shown. 3. From April 30, 2014, the Veteran's right and left lower extremity peripheral neuropathies have not been shown to cause moderately severe or severe incomplete paralysis, or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for diabetes mellitus have been met throughout the course of the appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017). 2. The criteria for ratings in excess of 10 percent prior to April 30, 2014, and in excess of 20 percent thereafter, for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for ratings in excess of 10 percent prior to April 30, 2014, and in excess of 20 percent thereafter, for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, adjudication of his claim at this time is warranted. Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. All service treatment records, VA treatment records, and private medical treatment records identified by the Veteran have been obtained. Furthermore, the Veteran testified at a Board hearing and a transcript of the hearing is of record. The Veteran was also provided with VA examinations in April 2014, August 2012, and December 2011 and neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). The Board notes that the Veteran was also provided a VA examination in July 2012, but the August 2012 VA examination, completed the following month, indicated an inadequate examination had been done. As such, the Board has determined that the August 2012 VA examination sufficiently reported the Veteran's symptoms at that time, and replaced findings from the July 2012 VA examination, which was indicated as being inadequate. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In an April 1998 rating decision, the Veteran was granted service connection for his diabetes mellitus and assigned a 20 percent rating under Diagnostic Code 7913, with an effective date of October 1, 1997. The Veteran never perfected an appeal on the initial rating for his diabetes mellitus. The Veteran filed a claim for and was granted an increased rating for his diabetes mellitus pursuant to a September 2003 rating decision, which increased his disability rating to 40 percent, effective November 14, 2001. The Veteran never perfected an appeal on this rating decision for his diabetes mellitus. In April 2012, the Veteran filed a claim seeking an increased rating for his diabetes mellitus. A September 2012 rating decision granted service connection for peripheral neuropathies of both feet associated with diabetes mellitus and assigned each a 10 percent rating under Diagnostic Code 8520, effective April 27, 2012, the date of the Veteran's claim. This rating decision also continued the 40 percent rating for the Veteran's diabetes mellitus. The Veteran appealed this decision and underwent a new VA examination in April 2014. A May 2014 rating decision increased his lower extremity peripheral neuropathy ratings to 20 percent, effective April 30, 2014, the date of the VA examination which showed his radiculopathy symptoms had worsened. The May 2014 rating decision also decreased the Veteran's diabetes mellitus rating to 20 percent, effective the date of the April 30, 2014 VA examination. As discussed above, the rating for the Veteran's diabetes mellitus was decreased, but the combined disability rating was actually increased by this rating decision. The Veteran asserts that he is entitled to higher ratings for his diabetes mellitus and associated lower extremity radiculopathies. Diabetes Mellitus The Veteran is seeking an increased rating for his service-connected diabetes mellitus, which was rated at 40 percent prior to April 30, 2014, and 20 percent thereafter, under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under DC 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring insulin, a 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 maximum 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetes 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. The criteria for rating diabetes mellitus are conjunctive, meaning that each element of the criteria is needed to meet the requirements for the specified evaluation. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). The rating criteria contained in Diagnostic Code 7913 are also "successive." That is, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Each higher rating requires the elements of the lower rating: the 10 percent rating requires a restricted diet; the 20 percent rating requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent rating requires insulin, restricted diet, and regulation of activities; and so forth. Accordingly, under this and other diagnostic codes that are successive, consideration of 38 C.F.R. § 4.7 is not required. See Camacho, 21 Vet. App. at 366. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1. The definition of "regulation of activities" in the criteria for a 100 percent rating, that is, "the avoidance of strenuous occupational and recreational activities," also applies to the "regulation of activities" criterion for a 40 or 60 percent rating under Diagnostic Code 7913. The criterion of "regulation of activities" requires medical evidence that occupational and recreational activities have been restricted by the diabetes. See Camacho v. Nicholson, 21 Vet. App. 360, 363-65 (2011). The Veteran submitted a letter from his VA primary care provider dated August 18, 2011, wherein the provider stated the Veteran was advised to avoid working the night shift because it impacted his ability to manage his diabetes mellitus appropriately. He also recommended the Veteran avoid working alone and wear his identification bracelet. This provider had also written similar letters in 2002 and 2003, which were the basis for the RO determining that the Veteran had a regulation of activities sufficient for a 40 percent diabetes mellitus rating in a September 2003 rating decision. At a December 2011 VA diabetes mellitus examination, the examiner noted that the Veteran was prescribed more than one injection of insulin per day, required no regulation of activities, met with his diabetic care provider less than twice a month, had zero episodes of ketoacidosis and hypoglycemia in the last twelve months requiring hospitalization, and had no loss of weight or strength. The examiner noted that the Veteran had upper peripheral neuropathy due to his diabetes mellitus and hypertension and erectile dysfunction which were at least as likely as not related to his diabetes mellitus. The Veteran submitted a written statement in July 2012 in support of his claim. He reported having to take increased medication to control his diabetes mellitus and that it became harder for him to work as his medications increased. He reported that the VA provider restricted his work such that he could not work the night shift and that he could no longer work alone and had to leave the maintenance field. As a result, he had to take a pay cut for a job that allowed him to better control his diabetes mellitus, but he still found it difficult to control. At an August 2012 VA diabetes mellitus examination, the examiner noted that the Veteran was on a restricted diet to manage his diabetes mellitus, prescribed more than one injection of insulin per day, required no regulation of activities, met with his diabetic care provider less than twice a month, had zero episodes of ketoacidosis and hypoglycemia in the last twelve months requiring hospitalization, and had no loss of weight or strength. In October 2012, the Veteran submitted a written statement disagreeing with the September 2012 rating decision. He stated that he experienced hypoglycemia at least five times per week and had to carry a blood sugar meter everywhere he went. He had to take a pay cut because of restrictions his doctor gave him to not work nights or by himself. He reported that there were at least two times in the past year that he had to call an ambulance because his blood sugar dropped low and he was unable to bring it up or because he was having problems with his insulin. His low blood sugar attacks affected his mental judgment and also impacted his having to change to a lower paying job. At an April 2014 VA diabetes mellitus examination, the examiner noted that the Veteran required more than one injection of insulin per day, required no regulation of activities, met with his diabetic care provider less than twice a month for ketoacidosis or hypoglycemia, had zero episodes of ketoacidosis or hypoglycemic reactions in the last twelve months requiring hospitalization, and had no loss of weight or strength. The Veteran submitted a written statement in July 2014 wherein he reported that he had regulation of activities in that a VA provider restricted him from working nights. He also argued that although he did not have hospitalizations for his hypoglycemia, he had a regulation of activities to prevent this from happening. He explained that the VA provider wrote a letter to his former employer stating that he should be taken off the night shift due to his diabetes mellitus. After being laid off, he had to switch industries because there were no jobs in the same industry in which he had worked that would allow him to avoid night shifts. He also reported feeling that his mental focus and physical ability were decreasing due to diabetes. The Veteran testified in a November 2016 Board hearing that he had been on a restricted diet since 2003 for his diabetes mellitus and took insulin injections five times per day. He reported his provider told him not to work alone or to work night shifts due to his diabetes mellitus. He further testified that he saw a provider quarterly for this condition. VA treatment records throughout the appeal period were reviewed and showed the Veteran treated every few months for diabetes mellitus, but did not show additional regulation of activities (beyond those indicated in the August 2011 VA provider letter discussed above) or episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. Of note, an August 2011 VA treatment record indicated that the Veteran's hypoglycemia had decreased since he stopped working night shifts. After a review of all the evidence, the Board finds that the Veteran's diabetes mellitus meets the criteria to be rated at 40 percent for the entire appeal period. The medical evidence demonstrates that the Veteran's diabetes has been treated with a restricted diet and multiple insulin shots per day. Furthermore, the Veteran has had his activities regulated throughout the course of the appeal by his VA provider instructing him to abstain from working night shifts. This regulation was identified in an August 2011 VA treatment note as having positively impacted the Veteran's diabetes mellitus condition, and was never explicitly removed from the Veteran's treatment instructions. As such, the Board finds that the Veteran was under this regulation of activities throughout the entire appeal period and met the 40 percent criteria, despite the VA examiners failing to acknowledge the Veteran's regulation of activities. However, at no time during the appeal period does the medical evidence show that the Veteran was meeting with his diabetic care provider twice a month or was hospitalized once or twice a year for episodes of ketoacidosis or hypoglycemic reactions. As such, a rating in excess of 40 percent for the Veteran's diabetes mellitus is not warranted. The Board also finds that there is no evidence to suggest that the Veteran warrants separate ratings for any other diabetes-related disabilities. He is in receipt of a separate rating for peripheral neuropathy of the upper extremities bilaterally, hypertension, and erectile dysfunction, all related to his diabetes mellitus. To the extent he disagrees with the ratings assigned for those disabilities he should file a claim for an increased rating. Note (1) to DC 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process. As stated above, the Veteran's bilateral lower extremity peripheral neuropathy ratings are part of the current appeal and are discussed below. As described, the criteria for a 40 percent rating, but no higher, for diabetes mellitus have been met throughout the appeal period. Lower Extremity Peripheral Neuropathies Both the Veteran's left and right lower extremity peripheral neuropathies are currently rated as 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Prior to April 30, 2014, they were rated as 10 percent disabling. Diagnostic Code 8520 provides for a 10 percent disability rating for mild incomplete paralysis of the sciatic nerve, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis with the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. The December 2011 VA examiner also examined the Veteran for peripheral neuropathy. The Veteran reported having noticed numbness and tingling in his feet about three years after being diagnosed with diabetes mellitus in 2000. The examiner noted the following symptoms and severity attributable to lower extremity diabetic peripheral neuropathies: mild paresthesias and/or dysthesias in the right and left lower extremities; mild numbness in the right and left lower extremities; and decreased deep tendon reflexes in the right and left ankles. There were no findings of intermittent pain, constant pain, decreased muscle strength, or decreased sensation of position, vibration, or cold in the bilateral lower extremities. Despite these symptoms, the examiner determined that the Veteran did not have a lower extremity diabetic peripheral neuropathy and that all sciatic and femoral nerves were normal. The August 2012 VA examiner diagnosed the Veteran with diabetic neuropathy of the bilateral feet. The examiner found that the Veteran had symptoms due to neuropathies in both his right and left lower extremities. The symptoms manifested in both extremities as paresthesias and/or dysesthesias of mild severity, and numbness of mild severity. Sensory testing revealed that the Veteran had decreased sensation to light touch in both his right and left feet and toes. The examiner found that the nerve roots involved were the sciatic nerves and that the Veteran had mild incomplete paralysis bilaterally. In October 2012, the Veteran submitted a written statement disagreeing with the September 2012 rating decision. He reported that his feet would burn too badly by the end of his work day that he could hardly walk. The April 2014 VA examiner noted that the Veteran had a diagnosis of diabetic neuropathy of the bilateral lower extremities. The examiner found that the Veteran had symptoms due to neuropathies in both his right and left lower extremities. The symptoms manifested in both extremities as mild intermittent pain, paresthesias and/or dysesthesias of mild severity, and numbness of mild severity. Sensory testing revealed that the Veteran had decreased sensation to light touch in both his right and left feet and toes and decreased deep tendon reflexes in his bilateral knees and ankles. Vibration sensation of the bilateral lower extremities was also decreased. There was no muscle atrophy. The examiner found that the nerve roots involved were the sciatic nerves and that the Veteran had mild incomplete paralysis bilaterally. Further, the examiner concluded that the Veteran's diabetic peripheral neuropathies impacted his ability to work in that they made it difficult for him to stand for prolonged periods and to walk for long distances. The Veteran testified before the Board in November 2016 that his feet had begun to tingle and burn and he had started taking medication for it. He felt that he was progressively getting worse. VA treatment records from the appeal period were reviewed and showed the Veteran often reported normal sensation in his feet (December 24, 2012 treatment record; October 28, 2013 treatment record; June 7, 2015 treatment record). Further, the Veteran sought VA medical treatment for an unrelated left knee condition and underwent physical therapy multiple times in 2016. He never mentioned moderately severe peripheral neuropathy symptoms of any lower extremity at the physical therapy visits, where the focus was on treating a lower extremity. Further, the Veteran denied numbness or tingling in his legs in 2015 and 2016 treatment visits (June 7, 2015 treatment record, May 24, 2016 treatment record; June 9, 2016 treatment record), but did report a burning sensation in his right and left lower extremities. As a whole, the VA treatment records over the course of the appeal period did not show symptoms more severe than those contemplated by the assigned ratings. Upon review, the Board finds that a disability rating in excess of 10 percent for left or right lower extremity peripheral neuropathies prior to April 30, 2014 cannot be granted; nor can a disability rating in excess of 20 percent thereafter. Here, the Veteran's neurologic impairments in both the left and right lower extremities were noted to be no more than mild at all VA examinations, and a 10 percent disability rating is the highest rating available under the Diagnostic Codes for mild impairment. The Board notes that the Veteran has been granted a 20 percent disability rating from April 30, 2014 for his peripheral neuropathies, despite contemporaneous VA examination findings of mild incomplete paralysis. Regardless, the Board is not tasked with assessing the appropriateness of the assigned ratings. Rather, the Board finds that ratings in excess of those assigned are not warranted at any time during the appeal period. In other words, the Veteran's lower extremity peripheral neuropathies have not exhibited moderate incomplete paralysis or worse prior to April 30, 2014; and have not exhibited moderately severe incomplete paralysis or worse from April 30, 2014. Accordingly, the Board finds that disability ratings in excess of 10 percent prior to April 30, 2014, and in excess of 20 percent thereafter, for left and right lower extremity peripheral neuropathies are not warranted. In reaching these conclusions with respect to all of the claims on appeal, the Board has considered the assertions of the Veteran as to his symptomatology and the severity of his conditions, but, to the extent the Veteran believes that he is entitled to higher ratings than assigned herein, the Board concludes that the findings during medical evaluations are more probative than are the lay statements. Furthermore, the assertions of the Veteran regarding the severity of his disabilities are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran, but has also relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. ORDER A 40 percent rating, but no higher, for diabetes mellitus is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 20 percent, to include a rating in excess of 10 percent prior to April 30, 2014, for right lower extremity peripheral neuropathy is denied. A rating in excess of 20 percent, to include a rating in excess of 10 percent prior to April 30, 2014, for left lower extremity peripheral neuropathy is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs