Citation Nr: 20036711 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 20-05 454 DATE: May 28, 2020 ORDER Entitlement to a disability rating of 100 percent for nephropathy with hypertension is granted. Entitlement to a disability rating in excess of 20 percent for lower left extremity peripheral neuropathy of the femoral nerve is denied. Entitlement to a disability rating in excess of 20 percent for lower right extremity peripheral neuropathy of the femoral nerve is denied. Entitlement to a disability rating in excess of 60 percent for peripheral vascular disease of left lower extremity is denied. Entitlement to a disability rating in excess of 60 percent for peripheral vascular disease of right lower extremity is denied. Entitlement to an effective date earlier than August 31, 2016 for the award of a 100 percent disability rating for nephropathy with hypertension is denied. Entitlement to an effective date earlier than December 13, 2017 for the award of a 20 percent disability rating for lower left extremity peripheral neuropathy of the femoral nerve is denied. Entitlement to an effective date earlier than December 13, 2017 for the award of a 20 percent disability rating for lower right extremity peripheral neuropathy of the femoral nerve is denied. Entitlement to an earlier effective date than December 13, 2017 for the award of service connection for peripheral vascular disease of left lower extremity is denied. Entitlement to an earlier effective date than December 13, 2017 for the award of service connection for peripheral vascular disease of right lower extremity is denied. FINDINGS OF FACT 1. The Veteran was precluded from more than sedentary activity with blood urea nitrogen more than 80mg% and required regular dialysis. 2. The preponderance of evidence does not show that the Veteran’s left lower extremity peripheral neuropathy of the femoral nerve was manifested by severe incomplete paralysis. 3. The preponderance of evidence does not show that the Veteran’s right lower extremity peripheral neuropathy of the femoral nerve was manifested by severe incomplete paralysis. 4. The preponderance of evidence does not show the Veteran’s peripheral vascular disease of the left lower extremity has resulted in ischemic limb pain at rest and either deep ischemic ulcers or ankle-brachial index (ABI) of 0.4 or less. 5. The preponderance of evidence does not show the Veteran’s peripheral vascular disease of the right lower extremity has resulted in ischemic limb pain at rest and either deep ischemic ulcers or ankle-brachial index (ABI) of 0.4 or less. 6. There was no pending claim for an increased disability rating for nephropathy with hypertension when the RO awarded an increased disability rating in a May 2018 decision based on medical evidence received December 13, 2017. There is no basis in law to award an earlier effective date more than one year prior to December 13, 2017. However, the RO awarded an effective date of July 31, 2016 in a December 2019 decision, which the Board will not disturb. 7. There were no pending claims for increased disability ratings for lower bilateral extremities peripheral neuropathy of the femoral nerve when the RO awarded increased disability ratings in a May 2018 decision based on medical evidence received December 13, 2017. There is no evidence dated within one year prior to December 13, 2017 pertinent to the severity of the Veteran’s lower bilateral extremity peripheral neuropathy femoral nerve impairment, or otherwise indicating the applicability of a 20 percent rating. 8. There were no pending claims for the award of service connection for peripheral vascular disease of the bilateral lower extremities when the RO awarded service connection in a May 2018 decision based on medical evidence received December 13, 2017. As this was the day the entitlements arose, there can be no effective date earlier than December 13, 2017. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 100 percent for nephropathy with hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, 4.115a, 4.115b, DC 7101, 7541. 2. The criteria for a disability rating in excess of 20 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 3. The criteria for a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 4. The criteria for an initial disability rating in excess of 60 percent for peripheral vascular disease of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7114. 5. The criteria for an initial disability rating in excess of 60 percent for peripheral vascular disease of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7114. 6. The criteria for an effective date earlier than August 31, 2016 for a 100 percent disability rating for nephropathy with hypertension have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for an effective date earlier than December 13, 2017 for the award of a 20 percent disability rating for lower left extremity peripheral neuropathy of the femoral nerve have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 8. The criteria for an effective date earlier than December 13, 2017 for the award of a 20 percent disability rating for lower right extremity peripheral neuropathy of the femoral nerve have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 9. The criteria for an effective date earlier than December 13, 2017 for the award of service connection for peripheral vascular disease of left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 10. The criteria for an effective date earlier than December 13, 2017 for the award of service connection for peripheral vascular disease of right lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to March 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in October 2018. The appellant requested to substitute upon the death of the Veteran in January 2019. In May 2019 the appellant was recognized as a substituted claimant. Additionally, the Court has held that a claim for a total disability rating based on individual unemployability due to service connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record shows a claim for TDIU has been raised. However, the appellant currently has a separate appeal pending for a TDIU. The Board will not decide the issue of entitlement to a TDIU now as it is currently being developed by the RO. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Nephropathy with hypertension The appellant seeks a rating in excess of 80 percent for the Veteran’s diabetic nephropathy with hypertension. The Veteran’s nephropathy is rated under Diagnostic Code (DC) 7541, which compensates for disabilities manifested by renal involvement due to diabetes mellitus or other systemic disease processes. Under that rating criteria, the disability is to be rated as a renal dysfunction. An 80 percent disability rating is assigned for evidence of persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent disability rating is granted for nephropathy requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. The Veteran was afforded a VA examination in connection with his claim for TDIU in December 2017. At that time his BUN was 45. Creatinine was 1.31. He showed abnormal proteinuria (albumin). Edema was not noted. The examiner reported the Veteran required regular dialysis. The Board finds that a 100 percent disability rating for nephropathy with hypertension is warranted because the December 2017 examiner reported the Veteran required regular dialysis. The record shows in October 2018 the Veteran was no longer a candidate for dialysis due to his severe kidney disease. The record also indicates during the appeal the Veteran was precluded from more than sedentary activity and his BUN was more than 80 mg% throughout the appeal, which also supports a 100 percent disability rating. 2. Bilateral lower extremity peripheral neuropathy of the femoral nerve The appellant contends that the Veteran’s bilateral lower extremity peripheral neuropathy is more severe than currently rated. The Veteran’s right and left lower extremity peripheral neuropathy has been rated as 20 percent disabling under Diagnostic Code 8526, which pertains to paralysis of the femoral nerve. Diagnostic Code 8526 provides that mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran underwent a VA diabetes examination in December 2017. The examiner found no constant pain, mild intermittent pain, mild paresthesias, and severe numbness of the lower extremities bilaterally. During the examination, strength testing was normal, reflexes were decreased for the knees and absent for the ankles. Light touch testing showed normal sensation in the knee/thigh, decreased sensation in ankle/lower leg, and no sensation in the foot/toes. Position sense was decreased in the right lower extremity and absent in left lower extremity. Vibration sensation was decreased in the right lower extremity and absent in left lower extremity. Cold sensation was absent in the bilateral lower extremities. There was no muscle atrophy due to diabetes. The Veteran had trophic changes of loss of hair of the knee and below, smooth skin, with dystrophic nails. The examiner’s overall assessment was that there was moderate incomplete paralysis of the femoral nerve bilaterally. The examiner reported functional impairment due to weakness of lower extremities with inability to walk 100 feet. Based on the above, the Board finds that these disabilities were manifested by moderate incomplete paralysis of the femoral nerve in the lower extremities. Here, the only probative medical opinion of record is the December 2017 VA examination, which states that there is moderate incomplete paralysis of the femoral nerve impacting each of the lower extremities. The Board finds that a disability rating in excess of 20 percent for bilateral lower extremity neuropathy of the femoral nerve is not warranted. The Board assigns significant weight to the December 2017 examiner’s opinion. The examiner based their opinion on a thorough examination of the Veteran and described the severity of the bilateral lower extremity neuropathy of the femoral nerve. The Board notes the Veteran is separately rated for sciatic and femoral neuropathy of the bilateral lower extremities. The 2017 VA examiner found them distinguishable, and separately rating them is therefore correct under rating procedure. 38 C.F.R. § 4.14 (VA’s rule against pyramiding, which precludes the evaluation of the same manifestation under separate diagnoses); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). There is no evidence of complete paralysis and a 40 percent disability rating is not warranted. While the combined effects of the femoral and sciatic nerves may arguably cause severe incomplete paralysis of the bilateral lower extremities, the 2017 VA examiner distinguished the effects of each separately service-connected disability. Accordingly, there is no basis for a disability rating in excess of 20 percent for the right and left lower extremity peripheral neuropathy of the femoral nerve. 3. Peripheral vascular disease of bilateral lower extremity The May 2018 rating decision granted a separate disability rating for peripheral vascular disease of the right and left lower extremities and assigned a disability evaluation of 60 percent each, effective December 13, 2017. Peripheral vascular disease is evaluated pursuant to Diagnostic Code 7114. A 60 percent disability rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ABI of 0.5 or less. A 100 percent disability rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ABI of 0.4 or less. Note 1 to Diagnostic Code 7114 provides that the ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. 38 C.F.R. § 4.104, DC 7114. The criteria listed in DC 7114 are conjunctive, as evidenced by the use of the word “and.” See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991); Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (finding that the use of the conjunctive “and” in the criteria for a 40 percent rating for diabetes – “insulin, restricted diet, and regulation of activities” - meant that entitlement to that rating required all three criteria to be met). That is, in order to satisfy the criteria for a higher 100 percent rating, the Veteran must demonstrate ischemic limb pain at rest and either 1) deep ischemic ulcers, or (2) an ankle/brachial index of 0.4 or less. On examination in December 2017, the Veteran was diagnosed with peripheral vascular disease. The Veteran was awarded a 60 percent disability rating for each lower extremity based upon ischemic limb pain at rest and persistent coldness of the lower extremities. The Veteran underwent a VA examination in March 2018. The examiner reported symptoms of intermittent claudication, pain in the calf that occurs while walking, deficient wound healing, sharp, dull, and aching and burning sensation in lower extremities, weakness, hair loss, marked coldness in legs and feet. The signs and symptoms indicated by the examiner included bilateral claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, persistent coldness of the extremity, diminished peripheral pulses, ischemic limb pain at rest, and trophic changes. Poor wound healing was noted but there was no report of deep ischemic ulcers. ABI testing was not conducted. While the record shows evidence of ischemic limb pain at rest, to be awarded a 100 percent disability rating the Veteran must also demonstrate either deep ischemic ulcers, or an ABI of 0.4 or less. A May 2018 VA treatment note shows the Veteran had an ABI of 1.04 in the right ankle and 1.01 in the left ankle. The record does not contain evidence of either deep ischemic ulcers, nor is there evidence of an ABI of 0.4 or less bilaterally. Accordingly, a 100 percent disability rating is not warranted for peripheral vascular disease of the left or right lower extremity. Effective Date The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2). Under 38 U.S.C. § 5110 (a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” Thus, “the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.” Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). 1. Evaluation of 100 percent for nephropathy with hypertension prior to August 31, 2016 In an April 2015 rating decision, the Veteran was awarded service connection for nephropathy with hypertension with a disability evaluation of 30 percent from April 28, 2009. Following the April 2015 decision, the Veteran was notified of his appellate rights. He did not appeal the determination or submit new and material evidence within one year of the decision, and the April 2015 rating decision became final. Following the April 2015 rating decision, the Veteran underwent a VA examination on December 2017 in connection with a pending claim for a TDIU. In the May 2018 rating decision on appeal, the RO assigned an 80 percent rating for nephropathy with hypertension, effective December 13, 2017. The Veteran expressed his timely disagreement with this effective date. The Board finds no document dated between the April 2015 rating decision and December 13, 2017 showing the Veteran sought an increased rating for his nephropathy with hypertension. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998). Additionally, while there are medical records dated during this time period, there is no indication in any of these records of an intent to apply for increased compensation benefits regarding nephropathy with hypertension. The Board therefore finds that there was no pending claim prior to December 13, 2017. The only remaining question is whether it was factually ascertainable that there was an increase in the disability within a year prior to December 13, 2017. The December 2019 rating decision awarded an earlier effective date from August 31, 2016 for nephropathy with hypertension with an 80 percent evaluation. The Board has awarded an increased 100 percent disability evaluation herein. There was no increased rating claim for nephropathy with hypertension between April 2015 and December 13, 2017, and the Veteran has already been awarded an earlier effective date over one year before December 13, 2017, which the Board will not disturb. No earlier effective date is warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107 (b). 2. Evaluation of 20 percent for bilateral lower extremity peripheral neuropathy of the femoral nerve prior to December 13, 2017 In an April 2015 rating decision, the Veteran was awarded service connection for bilateral lower extremity peripheral neuropathy of the femoral nerve, each lower extremity rated 10 percent disabling from December 5, 2013. Following the April 2015 decision, the Veteran was notified of his appellate rights. He did not appeal the determination or submit new and material evidence within one year of the decision, and the April 2015 rating decision became final. Following the April 2015 rating decision, the Veteran underwent a VA examination on December 2017 in connection with a pending claim for a TDIU. In the May 2018 rating decision on appeal, the RO assigned a 20 percent disability rating for bilateral lower extremity peripheral neuropathy of the femoral nerve, effective December 13, 2017. Again, the Board finds no document dated between the April 2015 rating decision and December 13, 2017 that shows the Veteran sought an increased rating for bilateral lower extremity peripheral neuropathy of the femoral nerve. The only remaining question is whether it was factually ascertainable that there was an increase in the bilateral lower extremity peripheral neuropathy of the femoral nerve within a year prior to December 13, 2017. On review of the record, however, the Board can point to no evidence dated within one year of December 13, 2017 pertinent to the severity of the Veteran’s femoral nerve impairment, or otherwise indicating the applicability of a 20 percent rating under DC 8526. As there was no increased rating claim for bilateral lower extremity peripheral neuropathy of the femoral nerve hypertension between April 2015 and December 13, 2017, and it was not factually ascertainable that the disabilities increased to a 20 percent disability rating within one year of December 13, 2017, an earlier effective date is not warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107 (b). 3. Earlier effective date for award of service connection for peripheral vascular disease of the bilateral lower extremities In the May 2018 rating decision on appeal, the RO granted service connection for peripheral vascular disease of the bilateral lower extremities evaluated as 60 percent disabling for each lower extremity effective December 13, 2017. The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case there was no claim for service connection for peripheral vascular disease of the bilateral lower extremities. The Veteran was diagnosed with peripheral vascular disease of the bilateral lower extremities related to his diabetes on December 13, 2017. As this was the day the entitlement arose, there can be no effective date earlier than December 13, 2017 under 38 C.F.R. § 3.400 and the claims are denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.