Citation Nr: 1809354 Decision Date: 02/16/18 Archive Date: 02/27/18 DOCKET NO. 12-14 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent for diabetic neuropathy of the left lower extremity. 2. Entitlement to a rating in excess of 10 percent for diabetic neuropathy of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD K. Ciardiello, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1965 to July 1967, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017. The issues of entitlement to an increased rating for left and right lower extremity diabetic neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeal period the Veteran's left lower extremity diabetic neuropathy has been productive of moderate incomplete paralysis. 2. Throughout the appeal period the Veteran's right lower extremity diabetic neuropathy has been productive of moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for diabetic neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8521 (2017). 2. The criteria for a rating of 20 percent for diabetic neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8521 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he is entitled to a higher rating for his bilateral lower extremity diabetic neuropathy. He is currently in receipt of a 10 percent rating for each leg. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under Diagnostic Code 8521 for the external popliteal nerve (common peroneal), incomplete paralysis warrants a 10 percent rating when mild, 20 percent rating when moderate, and 30 percent rating when severe. A 40 percent rating is available for complete paralysis of the nerve marked by foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. The Court recently held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. In May 2016, the Veteran was afforded a VA examination. The examiner assessed the Veteran has having bilateral lower extremity paresthesia. During the examination, the Veteran reported burning from his thighs to his knees when he walks. See May 2016 VA Examination at 2. In July 2017, the Veteran competently and credibly testified that both of his legs are in near constant pain and that when he sits down for a long period of time, both of his legs could go numb. This testimony was corroborated by the Veteran's son at the July 2017 hearing. The Board finds that these symptoms are productive of at least moderate incomplete paralysis. As such, at least a 20 percent rating for left and for right lower extremity diabetic neuropathy is warranted. See Miller v. Shulkin, 28 Vet. App. 376 (2017). This is true at all times during the appeal period, and therefore a staged rating is not warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The issues of ratings in excess of 20 percent for left and right lower extremity diabetic neuropathy are addressed in the remand portion of this decision. The record does not raise a claim for a total rating based on individual unemployability (TDIU) because at the July 2017 hearing the Veteran confirmed that he is not claiming a TDIU. See July 2017 Hearing Transcript at 2. ORDER For the entire period on appeal, a 20 percent rating is warranted for left lower extremity diabetic neuropathy. For the entire period on appeal, a 20 percent rating is warranted for right lower extremity diabetic neuropathy. REMAND The Board finds that remand is necessary to afford the Veteran with a new VA examination. The Veteran asserts that the May 2016 VA examination was inadequate. The Veteran has also asserted his neuropathy has gotten worse since that examination Specifically, the Veteran reports that the examiner only examined his feet, and did not examine his thighs at all, which is where the Veteran experiences the most pain. Accordingly, the Board finds a new examination is necessary to assess the current nature, extent, and severity of his bilateral lower extremity diabetic neuropathy. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the Veteran's claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of and/or were contemporaneously informed the extent and severity of his bilateral lower extremity neuropathy, to include any impact on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Then schedule the Veteran for a VA examination to ascertain the nature and severity of his service-connected bilateral lower extremity diabetic neuropathy, including during flare-ups. The claims folder should be made available to and reviewed by the examiner and all indicated tests should be conducted. The examination report must include a complete rationale for all opinions expressed. 4. Then readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs