Citation Nr: 1817041 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-00 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus type II. 2. Entitlement to a separate compensable rating for diabetic retinopathy. 3. Entitlement to a separate compensable rating for diabetic nephropathy. 4. Entitlement to an initial rating in excess of 10 percent for left lower extremity diabetic neuropathy for the period prior to May 26, 2016. 5. Entitlement to an initial rating in excess of 10 percent for right lower extremity diabetic neuropathy for the period prior to May 26, 2016. 6. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic neuropathy for the period prior since May 26, 2016. 7. Entitlement to an initial rating in excess of 20 percent for right lower extremity diabetic neuropathy for the period prior since May 26, 2016. 8. Entitlement to an effective date prior to July 9, 2013 for left lower extremity diabetic neuropathy. 9. Entitlement to an effective date prior to July 9, 2013 for right lower extremity diabetic neuropathy. 10. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Deanne L. Bonner, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 and April 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in November 2012. A transcript of this hearing is associated with the claims file. In June 2013 and December 2015, the Board remanded these issues for additional development. Notably, in December 2015, the Board also remanded the issue of entitlement to service connection for a diabetic skin condition. However, in a May 2017 rating decision, the RO granted service connection for diabetic dermatitis at an initial noncompensable disability evaluation, effective November 8, 2012. As a result, the issue of entitlement to service connection for a diabetic skin disability is no longer before the Board. Additionally, in the May 2017 rating decision, the RO granted 20 percent disability ratings for the Veteran's left and right lower extremity peripheral neuropathy disabilities, effective May 26, 2016. The Board notes that the increase from 10 to 20 percent for the left and right lower extremity peripheral neuropathy did not constitute a full grant of the benefits sought. Accordingly, the issues of entitlement to higher initial ratings for left and right lower extremity peripheral neuropathy remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In October 2017, the Veteran's representative requested that the Board hold the record open for 60 days until December 2017. The 60 day period has now expired and the Board can proceed with the claims. The Board observes that additional evidence has been associated with the claims file since the issuance of the May 2017 supplemental statement of the case. However, it is either duplicative or not relevant to the matters on appeal. Accordingly, the Board may proceed with an adjudication of the claims. The issues of entitlement to a separate compensable rating for diabetic nephropathy and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's type II diabetes mellitus treatment requires the use of oral hypoglycemic agents, but has not required restriction of diet. 2. The Veteran's diabetic retinopathy is manifested by corrected visual acuity of no worse than 20/40 in both eyes, without any evidence of visual field loss, pain, rest requirements, impairment of muscle function, or incapacitating episodes. 3. For the period prior to May 26, 2016, the Veteran's left lower extremity diabetic neuropathy manifested in no more than mild incomplete paralysis of the sciatic nerve. 4. For the period prior to May 26, 2016, the Veteran's right lower extremity diabetic neuropathy manifested in no more than mild incomplete paralysis of the sciatic nerve. 5. For the period since May 26, 2016, the Veteran's left lower extremity diabetic neuropathy manifested in no more than moderate incomplete paralysis of the sciatic nerve. 6. For the period since May 26, 2016, the Veteran's right lower extremity diabetic neuropathy manifested in no more than moderate incomplete paralysis of the sciatic nerve. 7. The Veteran's January 2008 increased rating claim for diabetes mellitus included claims for all symptoms resulting from this condition, to include lower extremity neuropathy. 8. Diabetic neuropathy symptoms of the left lower extremity were first documented on October 26, 2009. 9. Diabetic neuropathy symptoms of the right lower extremity were first documented on October 26, 2009. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). 2. The criteria for a separate compensable evaluation for diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.76a, Diagnostic Code 6006 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.27, 4.75-4.79, Diagnostic Code 6006 (2017). 3. The criteria for an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy for the period prior to May 26, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2017). 4. The criteria for an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy for the period prior to May 26, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2017). 5. The criteria for an initial rating in excess of 20 percent for left lower extremity peripheral neuropathy for the period since May 26, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2017). 6. The criteria for an initial rating in excess of 20 percent for left lower extremity peripheral neuropathy for the period since May 26, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2017). 7. The criteria for an effective date of October 26, 2009, for the award of service connection for left lower extremity diabetic neuropathy have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). 8. The criteria for an effective date of October 26, 2009, for the award of service connection for right lower extremity diabetic neuropathy have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). I. Higher Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 disabilities specified are 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 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of diabetes mellitus, diabetic retinopathy and peripheral neuropathy disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. A. Diabetes The Veteran filed a claim for an increased rating for his service-connected diabetes mellitus disability which was received by VA in January 2008. For the period under appeal, the Veteran's diabetes mellitus disability has been rated as 20 percent disabling under Diagnostic Code under Diagnostic Code 7913. See 38 C.F.R. § 4.119 (2017). The Veteran has a noncompensable evaluation for diabetic retinopathy, which has been incorporated into the Veteran's current 20 percent evaluation for diabetes mellitus, type II. The question of whether the Veteran is entitled to a separate compensable evaluation for diabetic retinopathy is discussed further below. Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents 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; and a 100 percent rating when the diabetes requires more than one daily injection of insulin, 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 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, Diagnostic Code 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Factual Background and Analysis The Veteran underwent a VA examination in October 2008. The Veteran reported that he was not exercising but he planned to walk his dog once the weather got cooler. He did not follow a diabetic diet and did not have to regulate his activities. He had no symptoms of peripheral vascular disease (PVD), no visual symptoms, no neurovascular symptoms and no peripheral nerve symptoms. Before he was retired, he missed no days of work due to his diabetes. The diagnosis was diabetes mellitus and renal failure which was at least as likely as not due to his diabetes mellitus. The Veteran underwent a VA examination in June 2010. His current treatment for his diabetes was medication and insulin. He was instructed on a special diet but did not have a restriction of his activities due to his diabetes mellitus. Prior to retirement, he missed no days because of his diabetes mellitus and his diabetes mellitus did not impact his activities of daily living. The diagnosis was diabetes with microalbumeria with otherwise normal renal function. The Veteran underwent a VA examination in January 2012. His current treatment for his diabetes was medication and insulin. He was not instructed on a special diet and did not have a restriction of his activities due to his diabetes mellitus. Prior to retirement, he missed no days because of his diabetes mellitus and his diabetes mellitus did not impact his activities of daily living. The diagnosis was diabetes with microalbumeria with otherwise normal renal function. The Veteran underwent a VA examination in August 2016. The Veteran required insulin treatment and had regulation of his activities as part of his medical management of his diabetes mellitus. When asked, the Veteran stated he had restrictions on walking. He had no hospitalizations and there was no loss of strength or weight. The examiner indicated that the Veteran's diabetes mellitus disability impacted his ability to work and that his diabetes mellitus disability had worsened. Based on the evidence, the Board does not find that the Veteran is entitled to an evaluation in excess of the current 20 percent disability rating for his service-connected type II diabetes mellitus disability. As noted above, in order for a 40 percent disability rating to be awarded, the service-connected diabetes mellitus must require (1) insulin, (2) a restricted diet, and (3) regulation of activities. These criteria are conjunctive; all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991). The evidence of record indicates that the Veteran's diabetes mellitus disability has required insulin. However, at no point has there been a showing that all 3 elements have been met at one time. Notably, VA examinations in October 2008, June 2010 and January 2012 all indicated that there was no restriction of activity. While the August 2016 VA examiner found that there was a restriction of activity, she also indicated that the Veteran did not require a restricted diet. Additionally, the October 2008, January 2012 and August 2016 VA examinations all indicated that the Veteran was not on a restricted diet for his diabetes mellitus. While the June 2010 VA examiner found that the Veteran was instructed on a special diet, he specifically indicated that the Veteran did not have a restriction of his activities due to his diabetes mellitus. As a result, there is no evidence that the Veteran at one point had all 3 elements of required insulin, a restricted diet, and restriction of activities to warrant a 40 percent rating. The Board therefore finds that no basis exists for the assignment of a schedular rating in excess of the already assigned 20 percent for diabetes under Diagnostic Code 7913. Accordingly, in the absence of evidence supporting the required all 3 elements at one time of required insulin, a restricted diet, and restriction of activities, the preponderance of the evidence is against the claim, and as such an increased 40 percent evaluation cannot be assigned for diabetes. As the preponderance of the evidence is against the claim for a rating in excess of 20 percent for a type II diabetes mellitus disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Diabetic Retinopathy The Veteran filed a claim for an increased rating for his service-connected diabetes mellitus disability with diabetic retinopathy which was received by VA in January 2008. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. During the course of the appeal, VA revised the criteria for rating eye disabilities; however, the changes only apply to claims for benefits received by VA on or after December 10, 2008. Because the Veteran's claim was received prior to that date (January 2008), the Board will apply the old version of the rating criteria for the period prior to December 10, 2008. However, the Board notes that the May 2017 supplemental statement of the case adjudicated the Veteran's claim based on the revised criteria. As a result, as of December 10, 2008, the Board will evaluate the Veteran's diabetic retinopathy under both versions and apply the rating criteria more favorable to the Veteran. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Prior to December 10, 2008, chronic diseases of the eye listed at Diagnostic Codes 6000 through 6009 were rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. A minimum rating of 10 percent was to be assigned during active pathology. 38 C.F.R. § 4.84a, Diagnostic Codes 6000-6009 (2008). Pursuant to the old rating criteria, central visual acuity was evaluated based on the degree of the resulting impairment of visual acuity, based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. §§ 4.75, 4.84a, Diagnostic Codes 6061-6079 (2008). The percentage evaluation was found on Table V of the old rating criteria by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a. Under the former rating criteria, vision in both eyes correctable to 20/40 warrants a non-compensable evaluation. 38 C.F.R. § 4.84a, Diagnostic Code 6079. A 10 percent rating is warranted when vision in one eye is correctable to 20/40 and vision in the other eye is correctable to 20/50, 20/70, or 20/100. 38 C.F.R. § 4.84a, Diagnostic Code 6079 (2008). Under the revised criteria, impairment of central visual acuity is still evaluated from 0 percent to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.79, Diagnostic Code 6061- 6066 (2017). A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066 (2017). Pursuant to the old rating criteria, impairment of field vision was assigned a disability rating based on the extent of the contraction of the visual field in each eye, which was determined by recording the extent of the remaining visual fields in each of the eight 45 degree principal meridians. The number of degrees lost was determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. The degrees lost were then added together to determine total degrees lost, which was subtracted from 500. The difference, which represented the total remaining degrees of visual field, was divided by eight to determine the average contraction for rating purposes. 38 C.F.R. § 4.76a, Table III. A 10 percent disability rating was assigned for unilateral loss of the nasal or temporal half of the visual field; or unilateral concentric contraction of the visual field between 16 and 60 degrees. Id. A 20 percent disability rating was assigned for bilateral loss of the nasal half of the visual field; unilateral concentric contraction of the visual field between 6 and 15 degrees; or bilateral concentric contraction of the visual field between 46 and 60 degrees. Id. A 30 percent disability rating is assigned for homonymous hemianopsia; bilateral loss of the temporal half of the visual field; unilateral concentric contraction of the visual field to 5 degrees; or bilateral concentric contraction of the visual field between 31 and 45 degrees. Id. A 50 percent disability rating is assigned for bilateral concentric contraction of the visual field between 16 and 30 degrees. Id. A 70 percent disability rating is assigned for bilateral concentric contraction of the visual field between 6 and 15 degrees. A maximum 100 percent disability rating is assigned for bilateral concentric contraction of the visual field to 5 degrees. Id. Effective December 10, 2008, retinopathy is evaluated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher rating. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Pursuant to the revised rating criteria, central visual acuity is generally evaluated on the basis of corrected distance vision with central fixation. 38 C.F.R. § 4.76(b) (2017). Impairment of central visual acuity is evaluated from 0 percent to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.79, Diagnostic Codes 6061-6079 (2014). With regard to visual field impairment, a 10 percent disability rating is assigned for unilateral loss of the temporal half of the visual field; unilateral or bilateral loss of the nasal half of the visual field; unilateral loss of the inferior half of the visual field; unilateral or bilateral loss of the superior half of the visual field; bilateral concentric contraction of the visual field between 46 and 60 degrees; or unilateral concentric contraction of the visual field between 16 and 60 degrees. 38 C.F.R. §4.79, Diagnostic Code 6080. A 30 percent disability rating is assigned for homonymous hemianopsia; bilateral loss of the temporal half of the visual field; bilateral loss of the inferior half of the visual field; bilateral concentric contraction of the visual field between 31 and 45 degrees; or unilateral concentric contraction of the visual field to 5 degrees. Id. A 50 percent disability rating is assigned for bilateral concentric contraction of the visual field between 16 and 30 degrees. Id. A 70 percent disability rating is assigned for bilateral concentric contraction of the visual field between 6 and 15 degrees. Id. A maximum 100 percent disability rating is assigned for bilateral concentric contraction of the visual field to 5 degrees. Id. With regard to impairment of muscle function, disability ratings are assigned based on the degree of diplopia (double vision). 38 C.F.R. § 4.79, Diagnostic Code 6090 (2017). Factual Background and Analysis The Veteran underwent a VA examination in October 2008. On examination, his best correctable distance visual acuities were 20/20 in both the right and left eyes. The diagnosis was diabetic retinopathy, cataracts in both eyes which was not caused by diabetes, hyperopia and presbyopia. The Veteran underwent a VA examination in June 2010. On examination, his best correctable distance visual acuities were 20/30 in both the right and left eyes. The diagnosis was minimal diabetic retinopathy of the right eye, cataracts in both eyes which was not caused by diabetes, hyperopia, astigmatism and presbyopia. The Veteran underwent a VA examination in January 2012. On examination, his best correctable distance visual acuities were 20/25 in both the right and left eyes. The diagnosis was diabetic mellitus with ocular manifestations which did not affect his vision as well as cataracts that were not related to his diabetes. The examiner noted that there was no diabetic caused visual impairment or disability as the Veteran's mild diabetic retinopathy was not affecting his vision. Additionally, the Veteran's glaucoma was not the type of glaucoma that was caused by diabetes mellitus. The Veteran underwent a VA examination in June 2016. The examiner noted that the Veteran had diagnoses of nonproliferative diabetic retinopathy of both eyes as well as pseudophakia of both eyes. On examination, corrected distance of both the left and right eye was 20/40 or better. The Veteran did not have a difference equal to 2 or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision with the near vision being worse. The pupils were round and reactive to light and the Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. He did not have astigmatism or diplopia. Both right and left eye pressure was 14 on the Goldmann applanation. The Veteran had a visual field defect but did not have contraction of a visual field, a scotoma or legal blindness. The Veteran had postoperative cataracts in both eyes (cataracts were removed) and the Veteran's decrease in visual acuity or visual impairment was not attributed to the cataracts. The Veteran had mild nonproliferative diabetic retinopathy of both eyes. During the past 12 months, the Veteran did not have any incapacitating episodes attributable to an eye condition and the eye disability did not impact his ability to work. The examiner noted that the Veteran's pseudophakia was less likely than not caused by or aggravated by his diabetes since the majority of the population had cataracts. The Veteran's diabetic retinopathy was an asymptomatic condition and the pseudophakia was allowing the Veteran to have 20/20 best corrected visual acuity. Therefore, the 2 diagnoses were not causing any impairment on the Veteran's ability to perform activities of employment. Given the evidence of record, the Veteran's bilateral eye condition does not approximate the criteria for a 10 percent rating, which is the next higher disability evaluation. In order to warrant a minimum compensable rating based on impaired visual acuity (notably, under both the old and revised regulations), one eye must have corrected distance vision of no better than 20/50. At no time has the Veteran's corrected visual acuity been worse than 20/40 in either eye. Pursuant to both the old and revised rating criteria, 20/40 vision in both eyes warrants a noncompensable rating. See 38 C.F.R. § 4.84a, Diagnostic Code 6079, Table V (2008); see also 38 C.F.R. § 4.79, Diagnostic Code 6066. With regard to impairment of visual fields, the record reveals that the Veteran did not have contraction of a visual field. Pursuant to both the old and revised rating criteria, remaining field vision between 46 and 60 degrees, bilaterally, warrants a 10 percent disability rating. See 38 C.F.R. §§ 4.84a, Diagnostic Code 6080, 4.79, Diagnostic Code 6080. Accordingly, pursuant to both the old and revised rating criteria, the Board finds that a compensable rating based on impairment of visual fields is not warranted. See id. The foregoing evidence also demonstrates that the Veteran's symptoms of diabetic retinopathy did not warrant a compensable rating. Although the old rating criteria provides for a minimum 10 percent disability rating during active pathology, the Board finds that such is not warranted in this case. "Active pathology" is not defined in the regulation; however, the evidence shows that throughout the appeal period, the Veteran's diabetic retinopathy did not cause compensable visual abnormalities, pain, diplopia, macular edema, flashes, floaters, or incapacitating episodes. The evidence also shows that the Veteran's visual acuity was better than 20/40 in each eye, there was no visual field defect, no diplopia, no impairment, and no incapacitating episodes. The most recent VA examiner in June 2016 specifically found that although the Veteran was diagnosed with diabetic retinopathy, the retinopathy was an asymptomatic condition and the Veteran's eye diagnoses were not causing any impairment on the Veteran's ability to perform activities of employment. Based on the foregoing, the Board finds that the absence of any sustained impairment or necessary treatment throughout the pendency of this appeal reflects a lack of active pathology. Accordingly, a 10 percent disability rating is not warranted based on active pathology under the old rating criteria. See 38 C.F.R. 38 C .F.R. § 4.84a. Accordingly, as the preponderance of the evidence is against the claim for a compensable diabetic retinopathy disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Peripheral Neuropathy In a March 2015 rating decision, the Veteran was granted service connection for bilateral lower extremity diabetic neuropathy at initial 10 percent disability ratings, effective July 9, 2013 under Diagnostic Code 8520. As noted above, in a May 2017 rating decision, the RO granted 20 percent disability ratings for the Veteran's left and right lower extremity neuropathy disabilities, effective May 26, 2016. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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 of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated 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. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Factual Background and Analysis The Veteran underwent a VA examination in June 2010. The examiner noted that the Veteran had peripheral neuropathy with complaints of swelling in his feet and ankles. The peripheral neuropathy had no effect on his usual occupation or activities of daily living. The Veteran underwent a VA examination in January 2012. The examiner noted that the Veteran had peripheral neuropathy with complaints of swelling in his feet and ankles. The peripheral neuropathy had no effect on his usual occupation or activities of daily living. On examination there was no muscle atrophy. On sensory examination, there was absent vibratory and monofilament loss on the left lower extremity and absent vibratory loss on the right foot. Gait and posture were normal and the examiner indicated that no clinical objective evidence of peripheral neuropathy was found on the examination. The Veteran underwent a VA examination in May 2016. The diagnosis was bilateral peripheral neuropathy of the lower extremities. The Veteran had moderate constant pain, intermittent pain and paresthesias in his right lower extremity. He had severe constant pain, intermittent pain and paresthesias in his left lower extremity. He also had mild numbness in both his right and left lower extremities and both legs were extremely sore. A neurological examination revealed decreased reflexes and light touch sensation in the left and right lower extremities. There was no muscle atrophy. The Veteran had lower extremity diabetic peripheral neuropathy as he had moderate incomplete paralysis of the left and right sciatic nerve. The examiner indicated that the Veteran's bilateral peripheral neuropathy of the lower extremities impacted his work as he may not be able to sit or stand for long periods of time and may not be able to walk for extended periods of time or for any length of distance. 1. Period Prior to May 26, 2016 Based on the evidence, the Board does not find that the Veteran is entitled to an initial evaluation in excess of the current 10 percent disability ratings for his left and right lower extremity peripheral neuropathy symptoms as there is no indication that incomplete paralysis is more than mild to warrant initial disability ratings in excess of 10 percent for the period prior to May 26, 2016. As noted above, the Veteran had swelling in his feet and ankles. However, both the June 2010 and January 2012 VA examiners found that the Veteran's peripheral neuropathy had no effect on his usual occupation or activities of daily living while the January 2012 VA examiner noted that posture was normal. Additionally, there is no evidence of muscle loss or atrophy. Thus, while the Veteran reported swelling in his feet and ankles and there was sensory loss, there is no evidence of atrophy, or loss of muscle tone. In short, the evidence of record does not support a rating of 20 percent for moderate symptoms under Diagnostic Codes 8520 and 8521, as the medical evidence as a whole supports a disability picture consistent with no more than mild incomplete paralysis of the left and right sciatic nerve for the period prior to May 26, 2016. While the Veteran is competent to describe the peripheral neuropathy symptoms, the medical evidence of record demonstrates that manifestations of the Veteran's service-connected peripheral neuropathy of the left and right lower extremities are wholly sensory and are mild in degree. In light of his symptoms and clinical findings, the Board concludes that these neurologic abnormalities approximate no more than mild incomplete paralysis of the sciatic nerve of the left and right lower extremities contemplated by the current initial 10 percent evaluations assigned for the peripheral neuropathy of the left and right lower extremities for the period prior to May 26, 2016. 2. Period Since May 26, 2016 Based on the evidence, the Board does not find that the Veteran is entitled to an initial evaluation in excess of the current 20 percent disability ratings for his left and right lower extremity peripheral neuropathy symptoms for the period since May 26, 2016 as there is no indication that incomplete paralysis is more than moderate to warrant disability ratings in excess of 20 percent. The evidence demonstrates that the Veteran's peripheral neuropathy of the left and right lower extremities has been manifested by pain, paresthesias and numbness. However, an evaluation in excess of 20 percent for the left and right lower extremities has not been demonstrated by the evidence of record at any point during the period under appeal. There was no evidence of foot drop, paralysis, constant weakness, or muscle atrophy. Moreover, the May 2016 VA examiner specifically described the Veteran's neurological symptoms as moderate incomplete paralysis of the sciatic nerve of the right and left lower extremities. In light of the above, the evidence of record does not support an initial rating of 40 percent for moderately severe symptoms under Diagnostic Code 8520, as the medical evidence as a whole supports a disability picture consistent with no more than moderate incomplete paralysis of the sciatic nerve of the right and left lower extremities. While the Veteran is competent to describe the radiating symptoms, the medical evidence of record demonstrates that manifestations of the Veteran's service-connected peripheral neuropathy of the left and right lower extremities are wholly sensory and are moderate in degree. In light of his symptoms and clinical findings, the Board concludes that these neurologic abnormalities approximate no more than moderate incomplete paralysis of the sciatic nerve of the left and right lower extremities contemplated by the current initial 20 percent evaluations assigned for the period since May 26, 2016. II. Earlier Effective Dates The Veteran contends that he is entitled to earlier effective dates for the grant of service connection for his left and right lower extremity diabetic neuropathy. For the reasons discussed below, the Board finds that the Veteran is entitled to effective dates of October 26, 2009, for the grant of service connection for his bilateral lower extremity diabetic neuropathy. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be 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, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Notably, VA examinations in August 2006 and October 2008 specifically indicated that there was no evidence of a diabetic neuropathy condition. In an October 5, 2009 notice of disagreement, the Veteran asserted that he has neuropathy. Here, the Board finds that the record demonstrates that an earlier effective date of October 26, 2009 is warranted as this was the date when diabetic neuropathy was first factually ascertainable. However, in a correspondence dated October 26, 2009, a private podiatrist noted that the Veteran had been a diabetic for 15 years and had recently begun diabetic neuropathy treatment. Additionally, on VA examination in August 2016, the VA examiner noted that the Veteran had a reported onset of peripheral neuropathy of 2009. As a result, the Board finds that the private podiatrist's October 26, 2009 correspondence which noted diabetic neuropathy is when a diagnosis of this condition was first factually ascertainable. Because the Veteran first asserted that he had diabetic neuropathy on October 5, 2009, which is earlier than October 26, 2009, (the date entitlement arose for left and right lower extremity diabetic neuropathy), the Board finds that October 26, 2009, is the appropriate effective date for the award of service connection for left and right lower extremity diabetic neuropathy. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). To that extent, the Veteran's claims for earlier effective dates are granted. ORDER Entitlement to a rating in excess of 20 percent for a diabetes mellitus type II disability is denied. Entitlement to a separate compensable rating for diabetic retinopathy is denied. Entitlement to an initial rating in excess of 10 percent for left lower extremity diabetic neuropathy for the period prior to May 26, 2016 is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity diabetic neuropathy for the period prior to May 26, 2016 is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic neuropathy for the period prior since May 26, 2016 is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity diabetic neuropathy for the period prior since May 26, 2016 is denied. Entitlement to an effective date of October 26, 2009, for the award of service connection for right lower extremity diabetic neuropathy is granted. Entitlement to an effective date of October 26, 2009, for the award of service connection for right lower extremity diabetic neuropathy is granted. REMAND The Board finds that more development is necessary prior to final adjudication of the claims on appeal. As noted in the December 2015 Board remand, in a November 2015 appellate brief, the Veteran's representative raised a new service connection claim for hypertension as the Veteran essentially contends that his hypertension should be considered a complication of his diabetes and thus the hypertension should be considered in the evaluation of his nephropathy. As a result, the Board found that the two issues were inextricably intertwined and that the RO must first adjudicate the service connection claim for hypertension before the Board can consider the evaluation of the nephropathy. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Accordingly, in its December 2015 remand, the Board instructed the RO to adjudicate the Veteran's claim for service connection for hypertension and then schedule the Veteran for a VA examination to evaluate his diabetic nephropathy. Unfortunately, while the Veteran's claims have again been returned to the Board, the Veteran's claim for service connection for hypertension has not been adjudicated. As a result, there has not been compliance with the Board's December 2015 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the issue of entitlement to a separate compensable rating for diabetic nephropathy is once again being remanded to ensure compliance with the December 2015 remand directives in order to adjudicate the intertwined issue of entitlement to service connection for hypertension. Additionally, the Board again notes that further development and adjudication of the Veteran's claim for entitlement to a separate compensable rating for diabetic nephropathy may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After completion of the above and any additional development deemed necessary, the issue of entitlement to service connection for hypertension should be adjudicated. 3. After the development in #2 has been completed, issues of entitlement to a separate rating for diabetic nephropathy and TDIU should be readjudicated. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. 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). These claims 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). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs