Citation Nr: 20059922 Decision Date: 09/11/20 Archive Date: 09/11/20 DOCKET NO. 15-27 562A DATE: September 11, 2020 ORDER Entitlement to a non-initial disability rating of 60 percent from October 2, 2011 to March 25, 2012, for service-connected diabetes mellitus is granted. Entitlement to a non-initial disability rating in excess of 60 percent prior to June 11, 2019 for service-connected diabetes mellitus is denied. Entitlement to a non-initial disability rating of schedular 100 percent, from June 12, 2019, for service-connected diabetes mellitus is granted. Entitlement to an initial disability rating in excess of 10 percent for diabetic neuropathy of the right lower extremity, sciatic nerve, prior to June 12, 2019, and in excess of 20 percent thereafter, is denied. Entitlement to an initial disability rating greater than 10 percent for diabetic neuropathy of the left lower extremity, sciatic nerve, prior to June 12, 2019, and in excess of 20 percent thereafter, is denied. REMANDED Entitlement to an increased rating for service-connected diabetes mellitus based on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) (prior to June 12, 2019) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REFERRED In the Board’s 2019 Remand, it was explained that an informal service connection for an acquired psychiatric disability, to include as secondary to service-connected diabetes, was filed in July 2014, although the receipt dates appear to be mislabeled as July 2013 for some of these documents. See VBMS with an incorrect receipt date of 7/19/13. This claim was referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. In August 2020 correspondence, the Veteran’s attorney points out that no action has been taken on this claim since the April 2019 Board decision. The Board again refers this issue to RO for appropriate action. FINDINGS OF FACT 1. From October 2, 2011 to March 25, 2012, the Veteran’s diabetes mellitus required insulin, restricted diet, and regulation of activities with episodes of hypoglycemic reactions requiring one hospitalization per year, with complications involving altered mental status. 2. Prior to June 11, 2019, treatment of the Veteran’s diabetes mellitus required regulation of activities with episodes of hypoglycemic reactions requiring one or two hospitalizations per year. 3. Since June 12, 2019, treatment of the Veteran’s diabetes mellitus either requires regulation of activities with episodes of hypoglycemic reactions requiring at least three hospitalizations per year plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 4. Prior to June 12, 2019, symptoms of the Veteran’s diabetic neuropathy of the right and the left lower extremity, sciatic nerve, most closely approximated mild incomplete paralysis; and since June 12, 2019, the symptoms most closely approximated moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 60 percent were met from October 2, 2011 to March 25, 2012, for diabetes mellitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.120, Diagnostic Code 7913. 2. The criteria for entitlement to a disability rating in excess of 60 percent prior to June 11, 2019, for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.21, 4.27, 4.119, Diagnostic Code 7913. 3. The criteria for entitlement to a disability rating of 100 percent for diabetes mellitus have been met effective June 12, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.21, 4.27, 4.119, Diagnostic Code 7913. 4. The criteria for entitlement to an initial disability in excess of 10 percent prior to June 12, 2019, and in excess of 20 percent thereafter, for diabetic neuropathy of the right lower extremity, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520, 8521. 5. The criteria for entitlement to an initial disability rating in excess of 10 percent prior to June 12, 2019, and in excess of 20 percent thereafter, for diabetic neuropathy of the left lower extremity, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520, 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1996 to June 1997. He testified before the undersigned Veterans Law Judge during a December 2018 video conference hearing and a transcript is of record. Most recently, the Board remanded, in part, for the RO to expressly consider whether referral to the Director of the Compensation Service is warranted for entitlement to an increased rating for diabetes mellitus on an extraschedular basis under 3.321(b)(1), and also to request the Veteran submit evidence to support his contentions regarding marginal employment and a sheltered employment arrangement. The Board regrettably finds that another remand is required, at least with regards to issues addressed in the remand section below, as there has not been a substantial compliance with the previous Board remand directives. Stegall v. West, Vet. App. 268, 270-71 (1998). While the case was in remand status, the RO granted the claim of entitlement to service connection for erectile dysfunction with penile deformity. The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial rating or effective date assigned, and thus, that claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating and effective date, is separate from any prior appeal regarding entitlement to service connection). Also, in a March 2020 rating decision, the RO granted an increased rating of 60 percent for the Veteran’s diabetes mellitus, effective March 26, 2012, and increased ratings of 20 percent for diabetic neuropathy of the left and the right lower extremity, sciatic nerve, effective June 12, 2019. Since the RO did not assign the maximum disability ratings possible, this appeal for higher evaluations remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The March 2020 rating decision properly informed the Veteran that these were only a partial grant of the benefits sought on appeal, and he was provided a supplemental statement of the case (SSOC). Neither the Veteran nor his representative has raised any specific issues with the duty to notify or assist or with the conduct of his Board hearing. 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 a duty to assist argument). Thus, the Board need not discuss any other potential issues in this regard. In deciding a claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But 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 such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Entitlement to a non-initial disability rating of 60 percent from October 2, 2011 to March 25, 2012, for service-connected diabetes mellitus is granted. The Veteran claims that he has been hospitalized at least once per year, has restriction of activities, and requires constant insulin use and a restricted diet. He also claims that he has been prescribed an insulin pump glucose therapy and receives monthly diabetic care. He further testified that he was hospitalized about 6-10 times from 2009 to 2012 for his diabetes condition. The Veteran’s claim for an increased rating was received on March 26, 2012, and that is the date as of which the RO assigned the increased rating of 60 percent. However, the effective date of any increase assigned can be up to a year prior to receipt of the claim for an increase, if it is factually shown an increase was warranted from an earlier date. Here, as discussed more below, the Board finds the evidence of hospitalization related to diabetes mellitus on October 2, 2011 warrants the 60 percent rating be assigned from that date, as this was within the year prior to his claim. Prior to March 26, 2012, the Veteran was in receipt of a 40 percent rating for his diabetes mellitus, which requires one or more daily injections of insulin, restricted diet, and regulation of activities. A 60 percent disability rating applies to diabetes requiring one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating applies to diabetes requiring 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 rated. 38 C.F.R. § 4.119, DC 7913. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent disability rating. Noncompensable complications are considered part of the diabetic process under DC 7913. Note (1) following 38 C.F.R. § 4.119, DC 7913. Renal involvement in diabetes is rated under DC 7541. The term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities” with the intention of avoiding hypoglycemic episodes. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Medical evidence is required to support this criterion; a medical provider must indicate that the claimant’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” Id. The rating criteria for diabetes are “successive,” which exist when the evaluation for each higher rating includes the criteria of each lower rating, so that if a component is not met at any level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). For example, the 10 percent evaluation for diabetes mellitus requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. Review of the evidence suggests that his diabetes mellitus required insulin, restricted diet, and regulation of activities with episodes of hypoglycemic reactions requiring one hospitalization per year, with complications that would not be compensable if separately evaluated. See October 2011 VA hospitalization records (showing altered mental condition with memory and word-finding aphasia, disorientation as to time/place, but otherwise no other psychiatric symptoms, and noted to have returned to normal at discharge); see also October 2011 VA treatment records. Thus, the Board finds that the Veteran was entitled to the 60 percent rating as of the date of this hospitalization. While the Board considered whether the Veteran would be entitled to a next higher (and also the maximum schedular rating) of a 100 percent, the Board finds it inapplicable. At no time during this period did his diabetes mellitus require regulation of activities with episodes of hypoglycemic reactions requiring at least three times for hypoglycemic reactions or required weekly visits to a diabetic care provider. At most, his condition only required one or two hospitalizations per year. Thus, the Board finds that he is warranted only a 60 percent, but no higher, for his diabetes mellitus condition. 2. Entitlement to a non-initial disability rating in excess of 60 percent for diabetes mellitus prior to June 11, 2019 is denied. The Board will limit its analysis here to the 60 percent rating for the time period prior to June 11, 2019, and will address the period effective June 12, 2019, in a separate section immediately below, as the Board finds staged evaluations relevant in this case, considering the factual findings showing distinct time periods during which the Veteran exhibited symptoms of the diabetes mellitus warranting different evaluations. Hart v. Mansfield, 21 Vet. App. 505 (2007). After reviewing all records, the Board finds that the Veteran is not warranted a rating in excess of 60 percent rating throughout this period. Review of the evidence shows the Veteran’s hypoglycemic reactions required only once a year hospitalization per year prior to June 12, 2019 (ie. see November 2017 VA treatment records, revealing one-time episode of hospitalization per year due to hypoglycemia in 2013, 2014, 2015; see August 2012 VA examination), and there is no indication that his diabetes condition ever required weekly visits to a diabetic care provider anytime during this period (see also November 2012 VA examination, frequency of diabetic mellitus care less than twice a month, and no episode of hospitalization over the past 12 months). Accordingly, entitlement to a rating in excess of 60 percent for diabetes mellitus is not warranted throughout this period. As the preponderance of the evidence is against assignment of any higher ratings, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to a non-initial disability rating of 100 percent for diabetes mellitus effective June 12, 2019 is granted. Upon review of the record, the Board finds that the weight of the competent evidence of record supports a fining that the Veteran’s diabetes mellitus warrants a schedular rating of 100 percent, effective June 12, 2019. The Veteran underwent two examinations throughout this period. First, in June 2019, the medical provider found that his diabetes mellitus requires more than one daily injection of insulin, restricted diet, and regulation of activities with hypoglycemic reactions requiring up to three times of hospitalization per year, plus complications of diabetic peripheral neuropathy (for which he is already in receipt of separate compensable ratings), but not accompanied with evidence of progressive loss of weight and strength. The Veteran also underwent a VA examination in March 2020, during which time a VA examiner indicated that his diabetes mellitus did not require regulation of activities, but noted presentation of hypoglycemic reactions requiring up to three times of hospitalization per year, more than one daily injection of insulin, restricted diet, plus complications of diabetic peripheral neuropathy and erectile dysfunction (for which he is already in receipt of separate compensable ratings) and progressive loss of weight and strength. Also, he was noted to have functional impact on working due to his availability to work with recurrent hospitalizations due to extreme diabetic symptoms. Although the Veteran’s diabetes mellitus was noted to not require regulation of activities during his March 2020 VA examination, upon contemplation of the totality of evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that effective June 12, 2019, his diabetes mellitus required more than one daily injection of insulin, restricted diet, and regulation of activities with hypoglycemic reactions requiring up to three times of hospitalization per year, with evidence of progressive weight loss and loss of strength, and/or indication of complications that would be compensable if separately rated (for which he is already in receipt of separate compensable ratings). Accordingly, the Veteran is entitled to a rating of 100 percent, effective June 12, 2019. 4. Entitlement to an initial disability rating in excess of 10 percent prior to June 12, 2019, for diabetic neuropathy, left lower extremity, sciatic nerve, and in excess of 20 percent thereafter, is denied. The Veteran claims that he experiences daily numbness in his toes and feet (see form 9). He also testified during the December 2018 Board hearing that he has a burning sensation (“pins and needles,” rated at about 3-4/10) that bothers the bottom of his feet about 3-5 times a week, which tends to exacerbate with walking. He also testified experiencing flare-ups while at work, where he has to be on feet all the time, moving around, visiting different facilities, and his condition requiring breaks, despite his effort to power through. Initially, the Board notes that service connection was originally granted for his peripheral neuropathy of the left and the right lower extremity, associated with diabetes mellitus, in a June 2017 rating decision, which assigned a 10 percent rating, respectively, under DC 8521, effective October 7, 2011. Those ratings were continued until the issuance of a March 2020 rating decision, which recharacterized the issues as diabetic neuropathy left and right lower extremity, sciatic nerve associated with diabetes mellitus, and changed the DC from 8521 to 8520, and granted a 20 percent, respectively, effective June 12, 2019. It appears that the RO originally assigned a 10 percent rating for each lower extremity respectively under DC 8521 based on an August 2012 VA examination (which indicated that he has diabetic peripheral neuropathy, but did not otherwise go into much details as to which nerves were affected)—and later changed the DC to 8520 and recharacterized it as stated above (diabetic neuropathy, left lower extremity, sciatic nerve associated with diabetes mellitus, and diabetic neuropathy, right lower extremity, sciatic nerve associated with diabetes mellitus), based on a 2019 VA examination, which specifically discussed which nerves were affected (ie. sciatic nerve), and also likely due to DC 8520 permitting a higher (and thus, more beneficial) disability rating. Pertinent regulations were provided to the Veteran in June 2017 and March 2020 Supplemental Statements of the Case. Prior to June 12, 2019 The Veteran underwent a VA examination in November 2012, during which time he was diagnosed with diabetic peripheral neuropathy. During the examination, he reported mild numbness on the plantar surface of both feet, and an incident about 1-2 years ago where he could not feel the gravel on the ground beneath his feet, but denied any functional limitations. Upon physical examination, the Veteran was noted to have only mild numbness in the right and the left lower extremity, with no sign of constant pain/intermittent pain, or paresthesias and/or dysesthesias. He also manifested 5/5 muscle strength and “normal” reflexes, other than the “decreased” right and left ankle reflexes and the “decreased” right/left foot/toes light touch testing. He also manifested “normal” cold sensation/vibration sensation, and “normal” position sense testing, except for the “decreased” right lower extremity position sense. There was no indication of muscle atrophy. His VA treatment records show complaints of stinging/burning feet (see October 2017 VA treatment records), but otherwise “normal” sensory exam for diabetic foot (see March 2018 private treatment records), and at worst, only “slightly diminished”/“diminished” sensation/numbness (see December 2011 VA treatment records, showing slightly diminished sensation monofilament left great toe; see October 2011 VA treatment records, showing some numbness on his feet; see October 2017 VA treatment records & November 2017 VA treatment records, revealing diminished sensation to vibration/sensory exam in his feet). Upon review of the records, the Board finds that the weight of the competent evidence of record does not support a finding that the Veteran warrants a rating in excess of 10 percent under DC 8521. Throughout this period, he manifested, at worst, only mild/diminished sensation/vibration/numbness, with no indication of any lost abduction/limitation of extension/dorsiflexion. To the extent the Veteran reported inability to feel the ground beneath his feet during the November 2012 VA examination, the Board notes that this was only a one-time incident that seems to have resolved per his report, and he manifested normal reflexes and only decreased feet/toes light touch testing, and otherwise normal position sense testing/cold and vibration sensation, other than a decreased right lower extremity position sense throughout this period. As there is no suggestion of any symptoms comparable to moderate or severe incomplete paralysis, the Board finds that he is not entitled to a next higher rating of 20 or 30 percent under DC 8521. Furthermore, as there is no indication of any complete paralysis, he is not warranted a 40 percent rating (highest rating available under DC 8521) for either the right or the left lower extremity diabetic neuropathy, sciatic nerve. The assignment of a particular diagnostic code depends upon the facts of each particular case, and the Board is authorized to choose an appropriate diagnostic code that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the diagnostic code assigned to that disability is revised in order to more accurately reflect the veteran’s relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). In this case, as DC 8520 permits more beneficial disability ratings (under DC 8520, a maximum rating available is 80 percent, as opposed to 40 percent, under DC 8521) and reflects a more accurate characterization of the affected nerve (ie. sciatic nerve), the Board will proceed its analysis under DC 8520 as well in evaluating whether he is entitled to a rating in excess of 10 percent throughout this period. However, even under DC 8520, the Board finds that he is not warranted a rating in excess of 10 percent throughout this period for either extremity diabetic neuropathy, sciatic nerve, as his symptoms are limited to mild, at worst, incomplete paralysis, with no evidence of any muscular atrophy or no active movement (see November 2012 VA examination, normal muscle strength and reflexes for lower leg/knees, only mild numbness in the right and the left lower extremity, with no sign of constant pain/intermittent pain, or paresthesias and/or dysesthesias). Furthermore, while complete paralysis allows an 80 percent rating (maximum rating allowed under DC 8520), there is no evidence of complete paralysis anytime during this period. Accordingly, entitlement to ratings in excess of 10 percent for the right and the left lower extremity diabetic neuropathy, sciatic nerve, is not warranted. As the preponderance of the evidence is against assignment of any higher ratings, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Since June 12, 2019 As noted above, the Veteran is in receipt of a 20 percent, effective June 12, 2019, under DC 8520, for the right and the left lower extremity diabetic neuropathy, sciatic nerve. The Veteran underwent a diabetic sensory-motor peripheral neuropathy DBQ examination in June 2019, during which time he was diagnosed with peripheral neuropathy of the left and the right lower extremity. Upon evaluation, the Veteran was found to have no constant pain, but only “moderate” intermittent pain, paresthesias and/or dysesthesias, and “moderate” numbness in the right and left lower extremity attributable to his diabetic peripheral neuropathy. He manifested “normal” muscle strength for all, except for the bilateral ankle plantar flexion/dorsiflexion (“4/5”). His deep tendon reflexes and light touch results were also all “normal,” except for the “decreased” bilateral ankle deep tendon reflexes, and bilateral ankle/lower leg and bilateral foot/toes light touch test. He also manifested “decreased” position sense/cold sensation/vibration sensation testing for bilateral lower extremities. There was no indication of any muscle atrophy or trophic changes. The examiner indicated that the Veteran has incomplete moderate paralysis of the lower extremities (bilateral sciatic and bilateral femoral nerve, but as for the latter nerve, the Board notes that this is a separate condition, for which he is in receipt of separate compensable ratings). As for functional impairment, the examiner indicated that the Veteran has lost 0-1 week of work time in the last 12 months and has impaired ability to stand and walk. The Veteran underwent another VA examination in February 2020, during which he was diagnosed with diabetic neuropathy and peripheral neuropathy of the right and left lower extremities. While the Veteran reported feeling of pins and needles in the feet for 15 hours before its subsiding, as well as numbness and burning sensation, physical examination showed no intermittent pain, but only “moderate” constant pain and numbness, as well as “mild” paresthesias and/or dysesthesias of the right and left lower extremity attributable to diabetic peripheral neuropathy. He manifested “normal” muscle strength for all, except for the bilateral ankle plantar flexion/dorsiflexion (4/5). Besides the “decreased” position sense for right and left lower extremities and the “decreased” light touch for bilateral foot/toes, he manifested “normal” cold sensation/vibration sensation testing for bilateral lower extremities. There was no indication of muscle atrophy nor trophic changes. The exam showed incomplete mild paralysis of the lower extremities (bilateral sciatic nerve), with no functional impairment. His treatment records document “normal” sensory exams, with only decreased sensation in toes/feet bilaterally (see November 2019 VA treatment records (complaint of numbness/tingling/burning feet, but no indication of its frequency/severity), March 2019 private treatment records, March 2018 private treatment records, November 2017 VA treatment records), and full range of motion for lower extremities (see February 2019 private treatment records). After reviewing all records, the Board finds that the Veteran is not warranted a rating in excess of 20 percent under DC 8520. At no time during this appeal period did the Veteran manifest symptoms comparable to incomplete paralysis that is moderately severe or severe. Instead, he consistently manifested, at worst, only “moderate” paresthesias and/or dysesthesias, numbness, and intermittent/constant pain, with generally “normal” deep tendon reflexes/light touch results, except for the “decreased” light touch and position sense testing. Additionally, he was consistently noted to not have any muscle atrophy, and presented normal muscle strength, and at no time during this period was he found to present symptoms comparable to complete paralysis. The Veteran’s lay statements and testimony have been considered in this decision. However, it is the objective findings of his disability upon which ratings are based. Accordingly, entitlement to ratings in excess of 20 percent for the right and the left lower extremity diabetic neuropathy, sciatic nerve, is not warranted. As the preponderance of the evidence is against assignment of any higher ratings, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 1. Entitlement to an increased rating for service-connected diabetes mellitus based on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) prior to June 12, 2019 As briefly discussed above, the previous Board remand, in part, instructed the RO to expressly consider whether referral to the Director of the Compensation Service is warranted, based upon the Veteran’s representative’s request during the Board hearing, but it does not appear that the RO has taken such action. There was no discussion whatsoever in the 2020 Supplemental Statement of the Case showing such referral had been considered. Thus, it is necessary to remand, but in doing so, the Board limits the issue to the period prior to June 12, 2019, as an extraschedular rating is not available when in receipt of a 100 percent schedular rating. Pursuant to this Board decision, the Veteran has been granted a 100 percent schedular rating for his diabetes mellitus condition, effective June 12, 2019. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) As briefly discussed above, the previous Board remanded in part, for the RO to send a letter to the Veteran asking him to submit evidence from 2011 to the present to support his contentions regarding marginal employment during most of the appeal period and a sheltered employment arrangement. However, it appears that the RO never advised the Veteran to submit such evidence. The RO did send a general letter in May 2019 concerning TDIU claims, and the Veteran did submit VA Form 8940 along with an earnings statement from the Social Security Administration, so those instructions have been completed. As his earnings prior to 2017 were either none or minimal, there is no need for him to submit any further evidence as to marginal employment. However, for 2017 and 2018, his earnings were gainful, and he testified that his friend hired him for this position and that he probably would not have gotten that position otherwise. In other words, he argues that his income should be considered marginal employment, on a facts found basis, as he contends it is akin to employment in a protected environment. Also, he noted on the Form 8940 that he stopped working full-time in February 2019, but that he was continuing to work part-time, and it appears even his part-time earnings would exceed the poverty threshold according to the June 2019 pay stub, but he should provide that information. These matters are REMANDED for the following action: 1. Send the Veteran a letter requesting he submit the following: • evidence to support his contention his employment from December 2016 to present is in a sheltered employment arrangement, and • information as to his total income for 2019. 2. After completing the above and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, issue a supplemental statement of the case. In doing so, the RO must expressly consider: • whether referral to the Director of the Compensation Service is warranted for an increased rating for diabetes mellitus on an extraschedular basis prior to June 12, 2019 under 38 C.F.R. § 3.321(b)(1). (See attorney’s contentions during December 2018 Board hearing). • whether, despite gainful income, the Veteran’s employment from December 2016 to present should be considered marginal employment, on a facts found basis, as akin to employment in a protected environment. (See attorney’s contentions during December 2018 Board hearing). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.