Citation Nr: 21001010 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-43 298 DATE: January 6, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction (ED), cataracts, and diplopia is denied. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy (sciatic nerve) prior to February 13, 2019 is denied. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy (sciatic nerve) prior to February 13, 2019 is denied. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (sciatic nerve) from February 13, 2019 is denied. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy (sciatic nerve) from February 13, 2019 is denied. Entitlement to a separate compensable rating for right lower extremity peripheral neuropathy (femoral nerve) prior to April 22, 2019 is denied. Entitlement to a separate compensable rating for left lower extremity peripheral neuropathy (femoral nerve) prior to April 22, 2019 is denied. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (femoral nerve) from April 22, 2019 is denied. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy (femoral nerve) from April 22, 2019 is denied. Entitlement to a separate compensable rating for cataracts is denied. Entitlement to a compensable rating for occasional diplopia due to diabetic ophthalmoplegia is denied. Entitlement to total disability based on individual unemployability, from July 12, 2011, is granted. REMANDED Entitlement to an initial compensable rating for headaches prior to April 22, 2019 is remanded. Entitlement to a rating in excess of 30 percent for headaches from April 22, 2019 is remanded. FINDINGS OF FACT 1. The probative evidence of record does not show that the medical management of the Veteran’s diabetes mellitus requires insulin or regulation of activities. 2. Prior to February 13, 2019, the Veteran’s right lower extremity peripheral neuropathy (sciatic nerve) manifested in no greater than mild incomplete paralysis. 3. Prior to February 13, 2019, the Veteran’s left lower extremity peripheral neuropathy (sciatic nerve) manifested in no greater than mild incomplete paralysis. 4. From February 13, 2019, the Veteran’s right lower extremity peripheral neuropathy (sciatic nerve) manifested in no greater than moderate incomplete paralysis. 5. From February 13, 2019, the Veteran’s left lower extremity peripheral neuropathy (sciatic nerve) manifested in no greater than moderate incomplete paralysis. 6. Prior to April 22, 2019, the Veteran’s objective and subjective right lower extremity peripheral neuropathy symptoms are fully compensated by his rating for sciatic nerve disability. A separate rating under the diagnostic code for the femoral nerve for the same symptoms in the same body part would violate the Rule Against Pyramiding. 7. Prior to April 22, 2019, the Veteran’s objective and subjective left lower extremity peripheral neuropathy symptoms are fully compensated by his rating for sciatic nerve disability. A separate rating under the diagnostic code for the femoral nerve for the same symptoms in the same body part would violate the Rule Against Pyramiding. 8. From April 22, 2019, the Veteran’s objective and subjective right lower extremity peripheral neuropathy symptoms are fully compensated by his rating for sciatic nerve disability. A separate rating under the diagnostic code for the femoral nerve for the same symptoms in the same body part would violate the Rule Against Pyramiding. 9. From April 22, 2019, the Veteran’s objective and subjective left lower extremity peripheral neuropathy symptoms are fully compensated by his rating for sciatic nerve disability. A separate rating under the diagnostic code for the femoral nerve for the same symptoms in the same body part would violate the Rule Against Pyramiding. 10. The Veteran’s preoperative bilateral nuclear sclerotic cataracts has not resulted in corrected distance vision worse than 20/40 bilaterally, there is no associated visual field defect or impairment of muscle function related to his cataracts, and there have been no incapacitating episodes. 11. The Veteran has occasional diplopia in all degrees, and continued diplopia in greater than 40 degrees due to diabetic ophthalmoplegia. His corrected distance vision remained better than 20/40 bilaterally, there is no associated visual field defect with his ophthalmoplegia. He has not had incapacitating episodes of ophthalmoplegia/diplopia. 12. From July 12, 2011, the Veteran’s service-connected disabilities, in conjunction with his education and work history, rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus with ED have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.119, Diagnostic Code (DC) 7913 (2020). 2. The criteria for entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy (sciatic nerve) prior to February 13, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8520. 3. The criteria for entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy (sciatic nerve) prior to February 13, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8520. 4. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (sciatic nerve) from February 13, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8520. 5. The criteria for entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy (sciatic nerve) from February 13, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8520. 6. The criteria for a separate compensable rating for right lower extremity peripheral neuropathy (femoral nerve) prior to April 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 7913- 8526. 7. The criteria for a separate compensable rating for left lower extremity peripheral neuropathy (femoral nerve) prior to April 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 7913- 8526. 8. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (femoral nerve) from April 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8526. 9. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (femoral nerve) from April 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.123, 4.124a, DC 8526. 10. The criteria for a separate compensable rating for bilateral cataracts have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 4.1-4.16, 4.31, 4.75-4.79, DC 6027, 6066. 11. The criteria for entitlement to a compensable rating for occasional diplopia due to diabetic ophthalmoplegia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75, 4.78, 4.79, DC 6090, 6026, 6030. 12. From July 12, 2011 (date of claim), the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marin Corps from May 1967 to March 1970. His awards include the Vietnam Service Medal with one star. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously before the Board in May 2018, November 2018, and November 2019. In May 2018, the Board remanded the claims so that medical records could be obtained, and the Veteran could be afforded VA examinations. In November 2018, the Board remanded the claims so that private and VA records could be obtained, and the Veteran could be afforded an additional peripheral neuropathy examination. In November 2019, the claims were remanded so that the RO could issue a Supplemental Statement of the Case (SSOC). The SSOC was issued in July 2020, and the claims have been returned to the Board for further consideration. The Board notes that prior remands addressed whether the severance of service connection for bilateral upper extremity peripheral neuropathies. A July 2020 rating decision re-established service connection for his bilateral upper extremity peripheral neuropathies; which was a full grant of the claims on appeal. As such, the bilateral upper extremity peripheral neuropathies are no long on appeal and are not addressed in this decision and remand. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction (ED) is denied. The Veteran has continued the appeal for a rating in excess of 20 percent for his diabetes mellitus. Although his representative has presented two briefs (October 2019 and October 2020), neither provided a substantive argument for the Veteran’s claim for an increased rating for his diabetes mellitus, although substantive argument was presented for other claims currently on appeal. After a review of the record, the Board finds that entitlement to a rating in excess of 20 percent for diabetes mellitus with cataracts, diplopia, and ED is not warranted. The Board notes that a November 2012 rating decision found that the Veteran’s ED was a result of his diabetes. He was granted entitlement to special monthly compensation for loss of use of a creative organ (SMC(k)). A May 2012 rating decision granted entitlement to service connection for cataracts, and provided a noncompensable rating. A March 2015 rating decision granted service connection for diplopia and provided a noncompensable rating. Noncompensable complications of diabetes are listed as part of the rating for diabetes. Once compensable, the complications of diabetes are separately rated. The Veteran’s cataracts will be further addressed below. Under 38 C.F.R. § 4.119, Code 7913, a 20 percent rating is assigned when diabetes mellitus requires insulin and a restricted diet, or oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring 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 is warranted for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities and involving 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. “Regulation of activities” under Code 7913 has been defined as a situation in which the veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). The notes to the Code provide, in part, that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation, and that noncompensable complications are considered part of the diabetic process under the Code 7913. Although the Veteran also has headaches as a complication of his diabetes, they are separately compensated. Diagnostic Code 7522 awards a 20 percent rating for deformity of the penis with loss of erectile power. This is the only schedular rating provided under this diagnostic code. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. In January 2010, the Veteran participated in a VA diabetes examination. He was noted to have been diagnosed with diabetes in the early part of 2008. He was started on Metformin and was gradually increased to 3 times per day. He admitted to being noncompliant with his diet. He had no history of diabetes related hospitalization or surgery. He had no history of episodes of hypoglycemia reaction or ketoacidosis. He was instructed to follow a restricted diet. He was not restricted in his ability to perform strenuous activities due ot his diabetes. His visual acuity was 20/20 bilaterally. At that point, his lenses were clear. He did not have diabetic retinopathy. A September 7, 2011 VA general medical examination included that the Veteran’s diabetes was treated with Glipizide 5 mg once per day. He denied any ketoacidosis, hypoglycemic reactions, or hospitalization. He was trying to restrict his diet and he was trying to swim one hour daily. There are no physician-prescribed restrictions on strenuous activities to prevent hyperglycemic reactions. He had a 3 to 4 month gap between diabetic care provider visits. On December 12, 2012, the Veteran participated in a VA diabetes examination in conjunction with the claim on appeal. At that time, his diabetes was treated with prescribed oral hypoglycemic agents and glipizide tab 10mg. he did not require the regulation of activities as part of the medical management of diabetes mellitus. He visited his diabetic care provider for episodes of ketoacidoses or hypoglycemic reactions less than 2 times per month. He had not had any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the prior 12 months. He had not had any progressive unintentional weight or strength loss attributable to his diabetes. A March 7, 2013 primary care physician record noted that the Veteran’s diabetes was still treated with Glipizide 5 mg which he was to increase to twice per day for one week and then increase to 10 mg. He was also advised on compliance with his diabetic diet. The Veteran denied any hypoglycemic events. In a December 16, 2014 statement, the Veteran argued that his diabetes had worsened such that it had damaged a nerve in his eye. This caused, headaches, dizziness, blurred vision, and double vision. He also reported his neuropathy had worsened. He stated he was taking four times as much medication to treat his diabetes and neuropathy. A July 6, 2015 VA treatment record included that the Veteran checked his blood sugar once per day. On September 25, 2018, the Veteran’s primary care physician again recommended that the Veteran participate in the VA “MOVE” program, related to helping participants decrease their weight with food and exercise. His diabetes was stable on Glipizide, Metformin, and diabetic foods. A March 26, 2019 VA primary care physician record wherein the Veteran sought treatment for worsening diabetic neuropathy, included counseling on portion control, weight loss, and he was recommended to join the “MOVE” program. Under “congestive heart failure” the Veteran was noted to have a complaint of shortness of breath with activity. On April 22, 2019, the Veteran participated in another VA diabetes examination. His diabetes was treated with oral hypoglycemic agents. The examiner did not select that his diabetes was managed with restricted diet or insulin. The examiner also selected that the Veteran did not require regulation of activities as part of the medical management of diabetes mellitus. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than 2 times per month. He had not had progressive unintentional weight loss and loss of strength attributable to diabetes. His complications of diabetes included peripheral neuropathy, eye conditions, and headaches. In the opinion section, the examiner noted that the Veteran’s cataracts were age-related and not due to his diabetes mellitus. His diplopia was due to diabetic ophthalmoplegia was diagnosed of CN 6 nerve palsy of the left eye. Generally, in assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of his diabetes. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013). However, he is not competent to render a medical diagnosis or opinion on complex medical questions such as episodes of ketoacidosis or hypoglycemic reactions, complications stemming from his diabetes, or whether his activities must be regulated for the medical management of his diabetes. Additionally, in this case, the Veteran has not reported that a medical provider has instructed him to regulate his activities for the medical management of his diabetes. In that regard, the Board relies primarily on the medical evidence of record. The Diagnostic Code is clear: in order to obtain the next higher rating, the criteria requires the use of insulin and the regulation of activities. The medical evidence is void of any mention of a need for insulin, none was found on any VA examination, and the Veteran has not asserted that he requires insulin. A medical compound or pharmaceutical agent other than insulin, which causes the body to secrete insulin, does not count as “requiring insulin,” as needed for a 40 percent rating because DC 7913 is successive and cumulative. Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013). Additionally, as shown in the VA examinations and VA treatment records, the Veteran does not require regulation of activities for the medical management of his diabetes. As the Veteran does not require insulin or regulation of activities, the requirements for a higher 40 percent rating for diabetes have not been met. The Board notes that the Veteran’s service-connected ED remains noncompensable as there is no complaint of or evidence supporting penile deformity. Entitlement to a rating in excess of 20 percent for diabetes with ED is not warranted. 2. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy (sciatic nerve) prior to February 13, 2019 is denied. 3. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy (sciatic nerve) prior to February 13, 2019 is denied. 4. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (sciatic nerve) from February 13, 2019 is denied. 5. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy (sciatic nerve) from February 13, 2019 is denied. 6. Entitlement to a separate rating for right lower extremity peripheral neuropathy (femoral nerve) prior to April 22, 2019 is denied. 7. Entitlement to a separate compensable rating for left lower extremity peripheral neuropathy (femoral nerve) prior to April 22, 2019 is denied. 8. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (femoral nerve) from April 22, 2019 is denied. 9. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy (femoral nerve) from April 22, 2019 is denied. The Veteran contends that his service connection bilateral lower extremity peripheral neuropathies warrant increased staged ratings. In the October 2019 Brief, the Veteran’s representative argued that the Veteran’s bilateral lower extremity peripheral neuropathies warranted 20 percent ratings for moderately disabling effects. At the time of this brief, the Veteran was only receiving 10 percent ratings for his lower extremity peripheral neuropathies for his sciatic nerves only. A subsequent July 2020 rating decision increased his sciatic nerve ratings to 20 percent from February 13, 2019 and provided separate 20 percent femoral ratings (bilateral) from April 22, 2019. The October 2020 Brief included an argument for entitlement to TDIU, but did not include specific argument for additional increased ratings for the Veteran’s staged separate peripheral neuropathy ratings for his bilateral lower extremities. The Veteran’s staged (10 percent prior to February 13, 2019 and 20 percent thereafter) ratings for his right and left lower extremity peripheral neuropathy (sciatic) are rated under DC 8520. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely), lost. 38 C.F.R. § 4.124A, DC 8520. The Veteran’s 20 percent ratings (from April 22, 2019) for his right and left lower extremity peripheral neuropathy (femoral) are rated under DC 8526. The question as to whether the separate 20 percent ratings under DC 8526 are warranted prior to April 22, 2019 are part of his increased rating claims as they stem from his diabetes. Under DC 8526, mild incomplete paralysis of the anterior crural (femoral) nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; and severe incomplete paralysis of the femoral nerve warrants a 30 percent rating. With complete paralysis of the femoral nerve, which warrants a 40 percent rating, there is paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a. Additional relevant nerve ratings are DC 8521 external popliteal nerve (common peroneal), DC 8524 internal popliteal nerve (tibial), and DC 8525 for posterior tibial nerve. DC 8521 provides a 10 percent rating for mild incomplete paralysis of the common peroneal nerve. A 20 percent rating is provided for moderate incomplete paralysis, and a 30 percent rating is provided for severe incomplete paralysis. Complete paralysis with foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes warrants a 40 percent rating. 38 C.F.R. § 4.124A. Under DC 8524 mild incomplete paralysis warrants a 10 percent rating, moderate incomplete paralysis warrants a 20 percent rating, and severe incomplete paralysis warrants a 30 percent rating. Complete paralysis with plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost, and warrants a 40 percent rating. 38 C.F.R. § 4.124A. Under DC 8526 mild incomplete paralysis of the posterior tibial nerve warrants a 10 percent rating, moderate incomplete paralysis warrants a 10 percent rating, and severe incomplete paralysis warrants a 20 percent rating. Complete paralysis of the posterior tibial nerve results in paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. 38 C.F.R. § 4.124A. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such use is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or, more appropriately in this case, the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). On January 21, 2010, the Veteran participated in a peripheral neuropathy VA examination. He was noted to have peripheral neuropathy with intermittent tingling sensation in his toes for the past 3 years. He denied loss of sensation. On physical evaluation, he had full muscle strength in his lower extremities. Sensation in his bilateral lower extremities was decreased in all toes (pain) and absent in all toes (light touch and vibration). His ankle reflexes were decreased (1+). The affected nerves were listed as the sural nerves in both lower extremities. The Board notes that the “sural nerves” are not nerves that are addressed under 38 C.F.R. § 4.124A. The sural nerve is “a cutaneous nerve, providing only sensation to the posterolateral aspect of the distal third of the leg and the lateral aspect of the foot, heel, and ankle. It is formed by terminal branches of the tibial and common peroneal nerves that joint together in the superficial aspect of the distal third of the leg. It is purely sensory.” https://www.ncbi.nlm.nih.gov/books/NBK546638/ (accessed December 21, 2020). A January 21, 2010 VA diabetes examination included that during neurological evaluation, the Veteran had absent vibratory sensation in all toes, and decreased pinprick sensation in 4 out of 5 left toes, absent vibratory and light touch sensation in all toes, and decreased pinprick sensation in all right toes. A February 17, 2011 VA treatment record included “normal” sensory examination of both feet. A September 7, 2011 VA General Medical examination included the Veteran’s report of numbness and tingling in his toes for the past two years, that felt like “pins and needles.” He also noted he could step on things without feeling it. His symptoms were “mild” in his lower extremities. He had full strength in his lower extremities and normal deep tendon reflexes. His sensation to pinprick and light touch were diminished on the distal tips of his toes in both feet. An April 18, 2012 VA primary care physician record included the Veteran’s complaint of tingling and numbness of his extremities. He was being treated with Gabapentin. On December 12, 2012, the Veteran participated in another VA peripheral neuropathy examination. He reported mild numbness, tingling, and burning in the feet intermittently for 3 years. He had been on Neurontin for a year and noticed a “significant decrease in symptoms” (it is unclear if this is directed to his upper or lower extremity symptoms). He had mild paresthesias and numbness of the lower extremities. He had full strength in the lower extremities. He had normal deep tendon reflexes throughout. He had decreased feet/toes monofilament sensation. He had normal vibration, position, and cold sensation. He did not have muscle atrophy. He did not have trophic changes attributable to diabetic peripheral neuropathy. The examiner found that the Veteran had normal sciatic nerves and normal femoral nerves. The examiner noted that the Veteran had decreased sensation in 10 gm monofilament only in 2 out of 5 toes on each foot. In the remarks section, the examiner noted that the Veteran had “mild diabetic sensory neuropathy of the feet only.” There was no evidence of motor paralysis in the lower extremities, complete or partial, which is why he selected “normal” and did not list a complete or incomplete paralysis of any nerve related to the lower extremities. The examiner noted the “polyneuropathy which is caused by diabetes most commonly affects small distal sensory nerve endings of multiple major nerve roots and cannot be attributed to single large nerve roots such as femoral sciatic…which innervate much larger areas than what is encompassed by the Veteran’s symptoms.” An August 20, 2014 VA physical therapy record, wherein the Veteran was seen for low back pain, included limited evaluation of the lower extremities in conjunction. He had normal muscle strength and sensation “grossly intact to light touch.” The Veteran had a wide gait, was able to walk 50 feet, and used a quad cane. A December 10, 2014 VA neurology consultation, scheduled to address the Veteran’s diplopia, included that the Veteran had decreased sensation to pain and temperature in his feet. He had normal deep tendon reflexes. In February 13, 2018 VA podiatry record included that the Veteran was referred for unusual swelling on the top of his left foot. He reported symptoms of burning and paresthesias in his feet. He had diminished sensation to monofilament tests, absent vibratory test of the right lower extremity and diminished vibratory test of the left lower extremity. A February 13, 2019 VA podiatry record included that the Veteran was seen for an annual diabetic foot examination. His pulses/circulation were intact. Neurological evaluation showed absent monofilament/vibratory sensation of both feet. On April 22, 2019 VA peripheral neuropathy examination, the Veteran was diagnosed upper and lower extremity peripheral neuropathies. He described symptoms of numbness and tingling that had worsened with time. He had pain and burning in his feet at night and constant numbness in his toes. He was treated with Gabapentin. He had moderate intermittent pain, moderate paresthesias, and severe numbness of the lower extremities. He had normal (5/5) muscle strength in the knees and ankles. He had normal (2+) knee and decreased (+1) ankle deep tendon reflexes. He had absent feet/toe monofilament (light touch) on testing; the rest normal. He also had absent position sense, vibration sensation, and cold sensation in the feet/toes. He did not have muscle atrophy or trophic changes. The examiner found that the Veteran had mild incomplete paralysis of both sciatic nerves, and mild incomplete paralysis of both femoral nerves. The functional impact of his bilateral lower extremity peripheral neuropathies was “needs to only walk on level ground where he can see his feet.” In the remarks section, the examiner selected that the Veteran’s lower extremity sensory neuropathy was mild in severity. A June 24, 2020 VA foot clinic record included that the Veteran’s deep tendon and PT pulses were intact in both feet. He did not have pigmentary changes. He complained of burning and paresthesia in his feet. He had absent monofilament and vibratory sensation tests in both feet. “Monofilament only present dorsal feet, absent all other locations.” The July 2020 rating decision provided increased 20 percent evaluations for bilateral lower extremity peripheral neuropathies (sciatic) from February 13, 2019. The rating decision noted that a February 2018 podiatry record showed diminished sensation in both feet. The February 13, 2019 podiatry evaluation noted burning and paresthesias and absent sensation in both feet. The rating decision noted that the April 2019 examination included sciatic and femoral nerves were impacted and that the examiner noted mild incomplete paralysis of the sciatic nerve. The rating decision noted that the objective clinic findings included absent sensation to light touch, position, vibration, and cold sensation and reduced reflexes. The rating decision noted that these objective findings, combined with continued complaint of burning and paresthesias, warrant a 20 percent rating and finding of moderate incomplete paralysis. The rating decision used the exact same objective findings to determine that the Veteran additionally had moderate incomplete paralysis of the femoral nerve. The Board has reviewed all the evidence of record regarding the Veteran’s bilateral lower extremity peripheral neuropathy in order to make its determination of the whether the Veteran is entitled to a higher rating for any period on appeal. Regarding the Veteran’s claims for a rating in excess of 10 percent for bilateral lower extremity peripheral neuropathy (sciatic) prior to February 13, 2019, the Board notes that the evidence included subjective complaints of intermittent tingling sensation in his toes (January 2010), tingling and numbness in the extremities (April 2012), intermittent mild numbness, tingling, and burning in the feet (December 2012), and burning and paresthesias (February 2018). The objective evidence prior to February 13, 2019 included decreased pain sensation and absent light touch and vibratory sensation, and decreased ankle reflexes (January 2010), decreased feet/toe light touch sensation in his toes only (December 2012), and diminished sensation to light touch (bilateral) and vibration (left) and absent vibration (right) (February 2018). The January 2010 VA examiner noted that the Veteran’s diabetes impacted his sural nerves. The December 2012 examiner assessed “mild diabetic sensory neuropathy of the feet only” and was noted to affect the small distal sensory nerve endings of multiple major nerve roots and cannot be attributed to a single large nerve root. The January 2010 and December 2012 examiners similarly explained that the Veteran’s diabetic neuropathy did not impact a single major nerve, but parts (the sensory part of) more than one major nerve. Given the subjective symptoms reported by the Veteran, objective findings on evaluation and in treatment records, and the findings of the examiners that the Veteran’s diabetic neuropathy impacting the cutaneous sensation of more than one major nerve, the Board finds that the Veteran’s bilateral lower extremity peripheral neuropathy showed no more than mild incomplete paralysis of the sciatic nerve. The Board notes that the 2010 examination included findings of absent sensation, but his sensation was noted to be decreased in subsequent evaluations. His additional objective findings were full muscle strength, normal knee reflexes, and decreased ankle reflexes. Sensation loss was noted to be associated with the feet/toes only. Entitlement to ratings in excess of 10 percent for bilateral lower extremity peripheral neuropathy (sciatic) is not warranted. Regarding the Veteran’s claim for ratings in excess of 20 percent for bilateral lower extremity peripheral neuropathy (sciatic) from February 13, 2019, the Board notes that the Veteran had subjective complaints of pain and burning in his feet at night and constant numbness in his toes (April 2019) and burning and paresthesia (June 2020). Objective medical evidence included findings of absent light touch/vibration sensation of both lower extremities (February 13, 2019), decreased ankle deep tendon reflexes, absent feet/toes light touch sensation, absent position sense, vibration sensation, and cold sensation of the feet (April 2019), absent light touch and vibration sensation of both feet/dorsal feet sensation present all others absent (June 2020). In October 2019, the Veteran’s representative argued that the Veteran’s peripheral neuropathy symptoms were of a “moderately” disabling severity. The Board agrees that from February 13, 2019, the Veteran’s peripheral neuropathy symptoms were of a moderate severity. His sensation had further diminished to consistent absent light touch/vibration sensation and position sense (April 2019). His other objective findings remained full muscle strength, normal knee reflexes, and decreased ankle reflexes. As such, his symptoms ranged between the mild and moderate severity for incomplete paralysis of the sciatic nerve. He has been provided 20 percent ratings based on moderate incomplete paralysis of the sciatic nerves. The Board finds that the evidence does not show moderately severe (or greater) incomplete paralysis. As severe incomplete paralysis of the sciatic nerve requires marked muscular atrophy, and the Veteran has had full muscle strength throughout, he does not more closely approximate a finding of moderately severe incomplete paralysis. Regarding the Veteran’s claims for separate ratings for bilateral lower extremity peripheral neuropathy (femoral) prior to April 22, 2019, and for ratings in excess of 20 percent from April 22, 2019, the Board finds that a separate ratings for the femoral nerve would violate the Rule Against Pyramiding. The 2010 examiner found that the “nerve” impacted was the sural nerve. As noted above, the sural nerve is formed by the terminal branches of the tibial and common peroneal nerves, and is not addressed under 38 C.F.R. § 4.124A. The 2012 examiner noted that his diabetic neuropathy affected the small distal sensory nerve endings of multiple major nerve roots and cannot be attributed to single large nerve roots. The 2019 examiner found that the Veteran had mild incomplete paralysis of the sciatic and femoral nerves, but did not attribute the Veteran’s symptoms or findings to one nerve or the other. The Board notes that the location of the Veteran’s subjective and objective symptoms were associated with this toes and feet for the entire period on appeal. The Board does not find that separate ratings for incomplete paralysis of the sciatic and femoral nerves is warranted. The 2010, 2012, and 2019 examiners all noted similar subjective and objective findings (with increased sensation loss but in the same location, in 2019). The 2010 and 2012 examiners noted that there was no single major nerve that was impacted by his diabetic neuropathy, but that it affected the sensory nerve endings of multiple major nerves. Mild incomplete paralysis of the sciatic and femoral nerves would have warranted separate 10 percent ratings under DC 8520 and 8526. However, the Veteran’s symptoms and objective findings were of a mild severity prior to February 13, 2019, and the 10 percent rating under DC 8520 encompassed all of the Veteran’s symptoms/findings. His symptoms increased in severity on February 13, 2019, but the severity is appropriately compensated with a moderate (20 percent) rating under DC 8520 which full encompassed all of the Veteran’s symptoms/findings. Additionally, the Board does not believe that separate ratings for moderate femoral and sciatic nerve incomplete paralysis should have been provided from April 22, 2019. A review of the July 2020 rating decision shows that the RO provided separate 20 percent ratings based on the same symptoms and findings; essentially the Veteran was compensated twice for the same symptoms/findings in the same body location. DC 8520 (sciatic) provides ratings related to foot/knee nerve symptoms, and DC 8526 (femoral) provides ratings related to the quadriceps extensor muscle. The foot and toes are addressed in several diagnostic codes. Given that the Veteran’s symptoms are associated with his toes and feet, the Board finds that DC 8520 is the more appropriate diagnostic code, and it provides for higher ratings. Providing ratings under DC 8520 and 8526 for the same symptoms in the same body parts constitutes pyramiding. As such, the Board will not provide separate ratings for the femoral nerve prior to April 22, 2019. The Board will not remove the Veteran’s separate 20 percent ratings for his femoral nerve from April 22, 2019, but finds that entitlement to increased ratings are not warranted based on symptom severity, and would violate the Rule Against Pyramiding. A separate rating under Diagnostic Code 8526 cannot be granted because it would violate the rule against pyramiding by compensating the Veteran twice for the same symptoms. 38 C.F.R. § 4.14. 10. Entitlement to a separate compensable rating for cataracts is denied. 11. Entitlement to a compensable rating for occasional diplopia due to diabetic ophthalmoplegia is denied. The Veteran is seeking separate compensable ratings for eye disabilities caused by his diabetes. He has been separately service-connected for diplopia due to diabetic ophthalmoplegia, with an initial noncompensable rating. As the Veteran has continued his increased rating claims on appeal, the downstream issues remain on appeal. The October 2019 Brief included the Veteran’s representative’s argument that the Veteran’s cataracts/diplopia warranted a 10 percent rating for diplopia, but that that “if impairment of visual fields was taken into account” he would warrant a 20% based on “the angle of diplopia equivalent” to 20/200 and 20/40. The October 2020 Brief did not include substantive argument related to the Veteran’s vision/eye disabilities. 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). Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Evaluation of impairment of muscle function is based on the degree of diplopia. The examiner must record test results for the four major quadrants (upward, downward, and right and left lateral) and the central field (20 degrees or less). 38 C.F.R. § 4.78(a). In accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is evaluated at 0 percent. An evaluation for diplopia will be assigned to only one eye. When a claimant has both diplopia and decreased visual acuity or visual field defect, the rater will assign a level of corrected visual acuity for the poorer eye. When diplopia extends beyond more than one quadrant or range of degrees, evaluate diplopia based on the quadrant and degree range that provides the highest evaluation. 38 C.F.R. § 4.78(b)(2). When diplopia exists in two separate areas of the same eye, increase the equivalent visual acuity under DC 6090 to the next poorer level of visual acuity, not to exceed 5/200. 38 C.F.R. § 4.78(b)(3). During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Cataracts is rated under DC 6027. 38 C.F.R. § 4.79. Both the former and revised criteria distinguish preoperative and postoperative cataracts. For preoperative cataracts, the former criteria instructed to evaluate based on visual impairment. The revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye, which instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. A September 23, 2011 VA eye examination found that the Veteran had mild cataracts. His corrected distance vision was 20/40 or better. He did not have a visual field defect and did not have diplopia at that time. He did not have diabetic retinopathy. On August 20, 2013, the Veteran complained of headache, blurred/double vision, and dizziness for three days. On August 22, 2013, VA optometry noted the Veteran had new diplopia that started on Friday of the week before. He was given an eye patch, and would become lightheaded and disoriented without it. His uncorrected distance vision was 20/25-2 bilaterally. His pain was worse with up gaze and his diplopia was worse with right gaze (right did not pass midline). Prism did not make his gaze single. He was diagnosed with lateral rectus palsy of the right eye with headache due to eye strain and diplopia. He was instructed to keep the eye patched to ease his symptoms of diplopia. An October 8, 2013 VA optometry record noted that the Veteran’s corrected distance vision was 20/20 bilaterally. He had distance 4 foot esophoria, no tropia and near 2 feet esophoria, tropia. He was assessed with “lateral rectus palsy of the right eye (CN 6 palsy) secondary to diabetes, and associated headache due to eye strain and diplopia—condition resolving. He had a decrease in esophoria and double vision complaint.” A January 6, 2014 VA optometry record noted that the Veteran had not notice diplopia for 4 weeks, and only experienced diplopia “when he makes it happen.” His corrected distance vision was 20/20 for both eyes. On October 8, 2014, the Veteran was seen for the onset of diplopia 3 weeks prior secondary to lateral rectus palsy. He had headaches temporally to the left eye now. His corrected distance vision remained 20/20. He had no left eye lateral movement past mid-gaze and had diplopia. He had “moderate esotropia 5-8 with his left eye being preferred stationary fixator.” By October 29, 2014, the Veteran reported that his diplopia was still present but improving as he could make items “single for brief periods of time.” By November 7, 2014, the Veteran’s left lateral rectus palsy was continuing to be monitored since onset 7 weeks prior. He reported improvement in diplopia, with less diplopia in the morning and he could “exert effort to make images single.” He had a prior history of right lateral rectus palsy attributed to diabetes. He had jerky movements of the left eye with binocular fixation, fusion in nasal gazes, diplopia reported in central fixation, inferior central, superior central, and all temporal gazes. A December 10, 2014 VA optometry record included that the Veteran had improvement in diplopia, and improved ability to focus for near activities; distance vision elicited diplopia more than at near. Regarding extraocular movement, he had full range of motion on the right, and mild restrictions in temporal gazes left with diplopia elicited in primary gaze and all left temporal gazes. He was to continue to patch as needed to eliminate diplopia and dizziness. He had nonsurgical cataracts of both eyes and bilateral presbyopia. His corrected distance vision was 20/20 bilaterally. On December 14, 2014, the Veteran participated in a VA eye examination. His corrected distance vision was 20/40 or better bilaterally. He had diplopia greater than 40 degrees down, lateral, and up. The diplopia was occasional, regarding the “frequency of diplopia and most recent occurrence” the examiner wrote “10 percent of day in distance only.” The diplopia was not correctable. The slit lamp and external eye evaluation showed bilateral nuclear sclerotic cataracts. The internal eye examination was normal. He did not have a visual field defect. His cataracts were preoperative, and the examiner noted that the Veteran did not have a decrease in visual acuity or visual impairment associated with his cataracts. His diplopia was noted to be secondary to lateral rectus palsy of the left eye. He did not have scarring or disfigurement and had not had any incapacitating episodes of eye disability in the prior 12 months. The Veteran did not have diabetic retinopathy. His cataracts were of the “normal, aging type and not related” to his diabetes. He had double vision due to left lateral rectus palsy due to his diabetes, and was a “self-limiting condition.” His diplopia had shown steady improvement since initial diagnosis in October 2014 and now the Veteran sees double about 10 percent of the day.” A January 12, 2015 VA optometry record noted that the Veteran was being monitored for left lateral rectus palsy in September 2014. His double vision had improved significantly, with double vision only at nighttime with added glare. He kept a patch in his pocket to use as needed. A February 24, 2015 VA neurology record included that the Veteran’s symptoms had “markedly improved.” He was only seeing double on extreme lateral gaze on left. On physical examination, his primary gaze appeared conjugate, “minimal left facial asymmetry (chronic, old Bell’s palsy), minimal double vision maximal on gaze to left.” He was seen for follow-up of “abducens palsy, likely due to diabetes and other cardiovascular risk factors. Symptoms markedly improved since last visit.” On May 18, 2015, the Veteran was seen for left-sided headache and diplopia for 4 days. He was seen in the Emergency Room for headache that did not worsen with extraocular movements. He had diplopia on far left lateral gaze, but no diplopia in primary midline gaze position. He recently suffered from left CN 6 palsy in December. The impression was of recurrent left CN 6 palsy, possibly secondary to ischemia of the cranial nerve, but unlikely to get infarction of the same nerve within such a short amount of time. A head CT was consistent with sinusitis. VA optometry records showed that the Veteran denied double vision “since LEE” but his headaches continued. His uncorrected distance vision was 20/20 right and 20/20-2 left. His CVF was full to finger counting bilaterally. The assessment was of left lateral rectus palsy, resolved today. However, a May 19, 2015 neurology record included that the Veteran’s headaches were better, but his diplopia had worsened. He had 2 mm left ptosis, mildly reduced oculomotor function in all directions, mildly reduced left abducens function, reduced pinprick in the left ophthalmic division of the CN 6 and subjectively reduced left corneal sensation. The impression was of paresis of CN 3, V1, and 6. He was admitted for possible bacterial meningitis. A May 21, 2015 addendum included that the Veteran’s ophthalmoplegia continued to worsen from initially involved left CN 6 only to include the left CN 6, 3, and 6-branch of trigeminal. A May 22, 2015 VA internal medicine recorded the Veteran’s report of worsened diplopia and blurry vision in his left eye. On evaluation, his visual fields were intact, but had diplopia throughout that disappeared when he closed one eye. He stopped switching his eye patch from left to right and was now only wearing the patch on his left eye. A May 22, 2015 VA ophthalmology record included the history of left lateral rectus palsy in September 2014 with a recurrent episode of left-sided headache “last Thursday” localized to behind his left eye with double vision beginning 4 days later with progressive drooping of left eyelid for the past two days. An MRI was negative. The eye doctor noted that the Veteran’s pupil-sparing CN 3 palsy was most likely secondary to diabetic ischemic cranial neuropathy giving prior episode of abducens palsy six months prior (now resolved). He was advised his diplopia would resolve with expectant management within 3 months in major cases. A May 23, 2015 VA neurology record noted that the Veteran had now developed a full left pupil-sparing oculomotor paralysis. he had some patchy mildly reduced pin and temperature over the left CN 6 area, mostly just lateral to the orbit where he has pain, but other portions of the left V1 are symmetric to testing. The examiner noted that the “picture had evolved and clarified itself into one of diabetic oculomotor paralysis.” A July 15, 2015 VA ophthalmology record noted that the Veteran had a history of recovered CN 6 palsy and recently a pupil-sparing CN 3 palsy. He was admitted in May 2015 and seen as an inpatient at that time. His ptosis improved at the beginning of the month. His diplopia persisted. He had dizziness when trying to walk, so he kept his eye patched. He had two prior episodes of diplopia. He was diagnosed with CN6 palsy in October 2014, and his prior episode was one year before then. His distance vision without correction was 20/25 bilaterally. Regarding his EOM, he had -1 restriction in supraduction and infraduction of his left eye. He had full adduction and abduction. His right eye was full. His lists showed partial ptosis of the left eye. He was assessed with pupil-sparing CN3 palsy, “likely microvascular ischemia.” He was informed that the majority of these conditions improved in 3-6 months. He had two prior episodes of diplopia that had improved in that time frame. He was to follow up in 5 months. A February 26, 2016 VA ophthalmology record noted that the Veteran’s diplopia and ptosis had resolved since his last visit and his vision was stable. His uncorrected distance vision was 20/20 bilaterally. He had 2+ nuclear sclerotic cataracts in both eyes. He was assessed with pupil-sparing CN 3 palsy with microvascular ischemia with no need for referral. His cataracts were not visually significant. A July 23, 2018 VA optometry record noted that the Veteran had a history of CN palsy likely related to diabetes, without current signs or symptoms. “A-seg OCT Angles—both his nasal and temporal angles were narrow in both eyes.” At that time, he did not have any diabetic complications to his eyes. It was noted that he had “anatomical narrow angle bilateral, and presbyopia.” On April 30, 2019 the Veteran participated in a VA eye examination. He was diagnosed with age-related cataracts of both eyes, and 6th nerve palsy of the left eye with diplopia secondary to diabetes. The history section noted that the Veteran began developing headaches and double vision in late 2013. After emergency room care, hospital admission, and testing to rule out meningitis, the Veteran was diagnosed with diabetic-related vascular incident affecting the 6th cranial nerve which innervated his left lateral rectus muscle. The Veteran’s cataracts were “never bothersome. Just diagnosed at routine eye examination.” His diabetic 6th nerve palsy had intermittent/not constant episodes that occurred “about one time per month” and resulted in “double vision only when [looking] to extreme left, headaches when diplopia worsens.” He had no symptoms associated with his cataracts. Regarding his 6th nerve palsy, a recurrence was preceded by headache, at which time the Veteran would lay down and sleep for a day or two. After resting, he would wear a patch for several days to rest his eye. This allowed time for the condition to improve. His corrected distance vision was 20/40 bilaterally. The Veteran had occasional diplopia greater than 40 degrees in down, lateral, and up. “Typically occurs average of one time per month with the most recent one occurring a couple of weeks ago.” It was not correctable with spectacle or prismatic. On slit lamp evaluation, the Veteran had “age-related nuclear cataract Grade 1” in both eyes. His internal eye evaluation was normal bilaterally. The examiner selected that the Veteran did not have a documented visual field defect. He did not have scarring or disfigurement. He had not had any incapacitating episodes of eye condition in the prior 12 months (under the revised definition). The examiner selected that his condition did not impact his ability work. The remarks section included that his 6th nerve palsy was due to diabetic ophthalmoplegia. An August 9, 2019 VA optometry record included the Veteran’s denial of visual complaints at the time. He reported diplopia “only when his blood sugar is too high, preceded by headache.” He denied other visual or ocular complaints. His corrected distance vision was 20/25-1 right and 20/20 left. He had minimal restriction of movement in very far temporal gaze of the left eye. His confrontation visual fields were full to finger counting. He did not have diabetic retinopathy in either eye. He had bilateral anatomical narrow angle, presbyopia, age-related nuclear cataract, and dry eye syndrome. Initially, regarding the Veteran’s cataracts, the Board finds that a separate compensable rating is not warranted. His visual acuity has been better than 20/40 bilaterally throughout the appeal period. Under DC 6066, corrected distance vision of 20/40 bilaterally warrants a noncompensable rating. Vision better than 20/40 is not listed in the criteria, and is therefore considered noncompensable as well. He has not been shown to have visual field defect or muscle impairment due to his cataracts. His cataracts have been described as mild, and the Veteran has reported no complaints related to his cataracts. As such, the Veteran’s cataracts will continue to be listed with his diabetes, and the Board finds that a separate compensable rating for cataracts is not warranted. The Veteran’s diabetic ophthalmoplegia, with resultant CN 6 and CN 3 palsies, has resulted in intermittent diplopia. As noted above, the Veteran’s visual acuity has remained at a noncompensable level throughout the appeal period. Although the representative’s brief noted “visual fields” in the argument for an increased rating, the Board did not locate any records of documented visual field defect. The 2014 and 2019 examiners both selected that the Veteran did not have a visual field defect. Regarding the Veteran’s diplopia, his representative has argued he was entitled to at least a 10 percent rating, but a 20 percent rating based on “the angle of diplopia equivalent” to 20/200 to 20/40. Under the Ratings for Impairment of Muscle Function, DC 6090 provides equivalent visual acuities (to use for rating under DC 6065 and DC 6066) for diplopia based on whether the diplopia impacts the central 20 degrees, 21 degrees to 30 degrees (with down, lateral, and up options), and 31 to 40 degrees (with down, lateral, and up options). The note following DC 6090 states “in accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is evaluated at 0 percent.” The Board notes that during his first 3 months following each episode of cranial nerve palsy the Veteran has diplopia in various, and sometimes all, gazes that is not correctable. The diplopia resolves over time, and is symptomatically treated with an eye patch. After each episode, the Veteran continues to have diplopia at “extreme” gazes or at greater than 40 degrees (as noted in the 2014 and 2019 examinations). As noted above, noncompensable ratings are assigned for occasional diplopia and for diplopia greater than 40 degrees, as there is no equivalent visual acuity listing for diplopia at greater than 40 degrees. As such, the Board finds that a compensable rating for diplopia under the Ratings for Impairment of Muscle Function/DC 6090 is not warranted. The Board notes that DC 6030 provides a 20 percent rating for paralysis of accommodation (due to neuropathy of the oculomotor nerve—CN 3). Although the Veteran suffered palsy to CN 3, he does not have neuropathy or paralysis of accommodation. His CN 3 palsy resolved. The Board notes that DC 6026, for optic neuropathy, is rated under the General Rating Formula for Diseases of the Eye (revised criteria) which allows for rating based on visual impairment or incapacitating episodes. Under the former criteria, DC 6026 directs to rated based on visual impairment. Here, the Board notes that from May 13, 2018 onward, the record does not show that the Veteran’s diabetic ophthalmoplegia/diplopia resulted in any incapacitating episodes. General Rating Formula Note (1) notes that an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) gives examples of treatment as including, but not limited to, systemic immunosuppressants, intravitreal or periocular injections, laser treatments, or other surgical interventions. The 2019 examiner found that the Veteran had not had any incapacitating episodes in the prior 12 months. The Board’s review of the record similarly does not reveal any incapacitating episodes from May 13, 2018 onward. Although the Veteran sees his eye doctors at least annually, he has not had any treatment that reaches the level of the treatment examples listed in the criteria. His prior episodes of palsy were treated with eye patching and resolved with time. His episodes of palsy had onset in the years prior to the revised criteria, and he was hospitalized in 2015 as physicians investigated if the Veteran has meningitis. He has reported headaches prior to his diplopia episodes, wherein he lays down and sleep for a “day or two” and then would wear an eye patch for several days to rest his eye. The Veteran is receiving a separate rating for headaches which contemplates prostrating attacks. Given the above, the Board finds that a separate compensable rating for diabetic ophthalmoplegia with diplopia is not warranted. TDIU 12. Entitlement to total disability based on individual unemployability, from July 12, 2011, is granted. The Veteran contends that he is entitled to TDIU and is unable to work due to his service-connected disabilities. Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16 (b). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident may be considered as one disability. 38 C.F.R. § 4.16(a). The current claims are on appeal from a July 12, 2011 claim for ratings related to the Veteran’s diabetes mellitus (upper extremity peripheral neuropathy, ED), which was taken as a claim for an increased rating for diabetes. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran had previously filed a claim of entitlement to TDIU, which was denied in an unappealed April 2010 rating decision. The Veteran’s combined schedular rating from July 12, 2011 is 80 percent. His service-connected disabilities were: posttraumatic stress disorder (PTSD) (50 percent from October 8, 2009), headaches (30 percent from April 22, 2019), diabetes with cataracts, ED, and diplopia (20 percent from October 8, 2009), bilateral upper extremity peripheral neuropathy (20 percent each from July 12, 2011), bilateral lower extremity peripheral neuropathy (sciatic) (10 percent from October 8, 2009 and 20 percent from February 13, 2019), bilateral lower extremity peripheral neuropathy (femoral) (20 percent from April 22, 2019), and ED (noncompensable). An August 2011 claim for TDIU included that he last worked in February 2009. His listed prior work history was singularly as a truck driver. He noted he had to stop driving due to his PTSD and diabetes. He had two years of college eduction and training as a truck driver. The Veteran’s lower extremity peripheral neuropathy, and diabetes with diplopia, ED, and cataracts functional impacts are outlined above. The Veteran’s PTSD was noted in include symptoms of extremely reactive to interpersonal frustrations and irritations. His records included that he occasionally had coarse interactions with customers and his report that truck driving was a good occupation for him due to his limited interactions with people. His upper and lower extremity peripheral neuropathy greatly impacted his employment as a truck driver, which is the only employment history noted in the records. His subsequent development of intermittent diplopia due to diabetes would also preclude employment in his prior field. Given the combination of the Veteran’s PTSD, diabetes, and complications of diabetes, the Board finds that the Veteran meets the criteria and TDIU is warranted. The Board will grant TDIU from the date of the earliest increased rating claim on appeal, July 12, 2011. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for headaches, prior to April 22, 2019, is remanded. 2. Entitlement to a rating in excess of 30 percent for headaches from April 22, 2019 is remanded. A December 2014 VA examination noted that the Veteran had acute onset right-side headache in August 2013. In September 2014, the headaches started again in the left eye with onset of diplopia. The September 2014 headache lasted “two weeks.” “He is ok if he wears his patch. If he goes too long without it, he starts developing a headache, diplopia, and dizziness. His symptoms were of headache pain localized to one side of the head, and sensitivity to light. Regarding the “duration of typical head pain” the examiner noted the Veteran had “2 episodes of headache lasting a week or longer. Now because he knows what to do (put on his eye patch), he can usually prevent a headache. He did not have typical characteristic prostrating attacks of migraine pain. The examiner noted that the headache condition resulted in functional impact but did not elaborate. A December 2014 VA neurology consultation noted that in September 2014 the Veteran had sudden onset diplopia with severe headache. His symptoms slowly improved over time, but he continued to have trouble with diplopia (indicating his headaches improved). The Veteran presented to the Emergency Room in May 2015 with a severe headache, and was admitted for left pupil-sparing C3 palsy, headache, sinusitis, and bacterial meningitis (later ruled out). He was admitted for 5 days while investigating his symptoms. On discharge (May 24, 2015), the Veteran reported a mild headache that resolved with Tylenol. He reported to VA ophthalmology on July 15, 2015 that his headaches had improved. On April 22, 2019, the Veteran participated in a second VA headache examination. He reported suffering a headache every couple of weeks where he needed to “lie down for 2 hours or so.” His headaches were treated with Ibuprofen as needed. He headache pain was pulsating, or throbbing head pain localized to one side of the head, and worse with physical activity. He was noted to experience non-headache symptoms of sensitivity to light and changes in vision, although the Board notes that his diplopia is not considered a symptom of his headaches. The duration of a typical headache was less than 1 day. The examiner selected that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain more frequently than once per month. The examiner also noted that the Veteran had very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The functional impact section included that “during a headache he had to lie down in a dark room and rest for around 2 hours.” The Board notes that the 2014 examiner found that the Veteran’s headaches were not characteristic prostrating headaches, and the 2019 examiner found that they were prostrating headaches. The Board also notes that the 2019 examiner noted that the Veteran had 2-hour long headaches, treatable with Ibuprofen, every couple of weeks, while the treatment records indicated severe headaches during two episodes of ophthalmoplegia, and otherwise he has reported “improved” headache symptoms prior to the 2019 examination. The examiner selected that these findings were productive of severe economic inadaptability. On remand, the Veteran should be afforded another VA headache examination which reviews the discrepancies between the 2014 and 2019 findings, and addresses when the Veteran’s symptoms changed. The matters are REMANDED for the following action: 1. Ongoing VA treatment records related to his headaches should be added to the electronic file. 2. Schedule the Veteran for an updated VA headache examination. Following a review of the record, including the prior 2014 and 2019 examinations, the examiner should address the following: (a.) Does the Veteran have characteristic prostrating attacks of headache pain? The examiner should note the 2014 and 2019 examiners provided different answers, and address if the headaches have stayed of a similar severity throughout or worsened/improved. (b.) Does the Veteran have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability? If so, when did these very prostrating and prolonged attacks begin? The Board notes that the 2019 examination report listed headaches lasting 2 hours, treated with Ibuprofen, every couple of weeks. 3. After completing the development requested above, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.