Citation Nr: 21002373 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-03 836 DATE: January 13, 2021 ORDER Entitlement to a rating of 40 percent, but no greater, from May 8, 2019 for service-connected diabetes mellitus, type II, (DM II) is granted. Entitlement to a rating in excess of 20 percent prior to May 8, 2019, and in excess of 40 percent, thereafter, for service-connected DM II, is denied. Entitlement to a rating of 40 percent, but no greater, from May 8, 2019 for service-connected peripheral neuropathy of the lower left extremity, is granted. Entitlement to a rating in excess of 20 percent prior to May 8, 2019, and in excess of 40 percent, thereafter, for service-connected peripheral neuropathy of the lower left extremity, is denied. Entitlement to a rating of 40 percent, but no greater, from May 8, 2019 for service-connected peripheral neuropathy of the lower right extremity is granted. Entitlement to a rating in excess of 20 percent prior to May 8, 2019, and in excess of 40 percent, thereafter, for service-connected peripheral neuropathy of the lower right extremity, is denied. FINDINGS OF FACT 1. As of May 8, 2019, the Veteran’s DM II, manifested with no more than requiring one or more daily injection of insulin, restricted diet, and regulation of activities. 2. Prior to May 8, 2019, it is not factually ascertainable that the Veteran’s DM II, manifested with more than requiring one or more daily injection of insulin, and restricted diet. 3. As of May 8, 2019, the Veteran’s peripheral neuropathy of the lower left extremity manifested with no more than moderately severe incomplete paralysis of the sciatic nerve. 4. Prior to May 8, 2019, it is not factually ascertainable that that Veteran’s peripheral neuropathy of the lower left extremity manifested with more than mild incomplete paralysis of the sciatic nerve. 5. As of May 8, 2019, the Veteran’s peripheral neuropathy of the lower right extremity manifested with no more than moderately severe incomplete paralysis of the sciatic nerve. 6. Prior to May 8, 2019, it is not factually ascertainable that that Veteran’s peripheral neuropathy of the lower right extremity manifested with more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no greater, for DM II, have been met since May 8, 2019. 38 U.S.C. § 1155 38 C.F.R. §§ 4.1, 4.119, Diagnostic Code 7913 2. The criteria for a rating in excess of 20 percent prior to May 8, 2019 and in excess of 40 percent, thereafter, for DM II, have not been met. 38 U.S.C. § 1155 38 C.F.R. §§ 4.1, 4.119, Diagnostic Code 7913 3. The criteria for a rating of 40 percent, but no greater, for peripheral neuropathy of the left lower extremity, have been met since May 8, 2019. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520. 4. The criteria for a rating in excess of 20 percent prior to May 8, 2019 and in excess of 40 percent, thereafter, for peripheral neuropathy of the left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520. 5. The criteria for a rating of 40 percent, but no greater, for peripheral neuropathy of the right lower extremity, have been met since May 8, 2019. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520. 6. The criteria for a rating in excess of 20 percent prior to May 8, 2019 and in excess of 40 percent, thereafter, for peripheral neuropathy of the right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision from a Department of Veterans Affairs (VA) regional office (RO). The Veteran appeared at a Travel Board hearing at the RO in May 2019 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. In July 2019, the Board remanded these matters for additional development. All requested development was substantially completed. Additionally, upon remand, the AOJ assigned separate increased ratings of 40 percent for DM II, peripheral neuropathy of the left lower extremity, and peripheral neuropathy of the right lower extremity. All effective May 14, 2019. Increased Rating Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time. Id. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21. 1. DM II The Veteran has asserted that he is entitled to a rating excess of 20 percent prior to May 14, 2019, and in excess of 40 percent, thereafter, for service-connected DM II. DM II is rated under Diagnostic Code 7913. A 10 percent evaluation is assignable where diabetes mellitus is manageable by restricted diet. A 20 percent evaluation is assignable where diabetes mellitus requires insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring 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, a 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 disability rating will be assigned when diabetes mellitus requires more than one daily injection of insulin, restricted diet, and regulation of 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 a progressive loss of weight and strength or complications which would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. According to Note (1), following DC 7913, compensable complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are part of the diabetic process under DC 7913. Id. Prior to May 8, 2019 Prior to May 8, 2019, the Veteran’s treatment records indicated that he was treated for DM II with insulin injections twice daily. Private and VA treatment records reflect that the Veteran was counseled to have a restricted diet. Additionally, the Veteran was prescribed an oral hypoglycemic agent. The January 2016 VA examination reflected the same level of treatment. This level of treatment is consistent with a 20 percent rating under DC 7913. A higher rating of 40 percent would require the additional need to regulate activities due to DM II. The Veteran indicated in his January 2018 substantive appeal that his DM II restricted his daily activities. However, at the May 2019 hearing, he explained that he avoided walking long distances due to his feet, noting it hurts his feet and that he sometimes falls. Thus, this restriction is one related to his peripheral neuropathy, which is separately rated. The January 2016 VA examiner noted that regulation of activities was not part of this Veteran’s medical management of DM II. This is consistent with treatment records that make no mention of regulating activities due to DM II. Therefore, the weight of the evidence is against finding the Veteran’s DM II required the regulation of activities. As such, a rating in excess of 20 percent prior to May 8, 2019 is not warranted. Since May 8, 2019 On May 8, 2019, the Veteran reported to his private provider that he was experiencing increased severity in DM II symptoms. The increased symptoms are do not expressly mentioned including regulation of activities, nor did the treatment record reflect a change in treatment that required regulation of activities. Nevertheless, a letter from the Veteran’s private provider, dated May 14, 2019, noted the additional requirement to regulate activities as part of the Veteran’s medical management of DM II. As there are no treatment records from the May 14, 2019, it is reasonable to conclude that the information in the May 14, 2019 letter dated back to at least the most recent treatment record, which was the May 8, 2019 treatment record that indicated increased symptomatology of DM II. A January 2020 examination also noted the need for restricted activities. Resolving reasonable doubt in the Veteran’s favor, May 8, 2019 is earliest date it can be factually ascertained that the Veteran’s DM II required the regulation of activities; thus, warranting a rating of 40 percent. A higher rating of 60 percent would require the additional requirement of one to two hospitalization a year for ketoacidosis or hypoglycemic reactions or twice a month visits to a diabetic car provider plus complication that would not be compensable if separately evaluated. The record does not reflect any hospitalizations due to ketoacidosis or hypoglycemic reaction. Nor does the record indicate the Veteran requires twice a month visits to a diabetic. Thus, the weight of the evidence is against assigning a rating in excess of 40 percent for DM II. Therefore, a rating of 40 percent, but no greater, for DM II is warranted from May 8, 2019, forward. 2. Peripheral Neuropathy of the Left and Right Lower Extremities The Veteran has asserted that he is entitled to a rating in excess of 20 percent prior to May 14, 2019, and in excess of 40 percent, thereafter, for service-connected peripheral neuropathy of the left and right lower extremities. The Veteran’s peripheral neuropathy is rated under Diagnostic Code 8520, which provides mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. See 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum rating for conditions that are wholly sensory, as opposed to a minimum rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Prior to May 8, 2019 Prior to May 8, 2019, the Veteran’s treatment records indicate he experienced peripheral neuropathy in both lower extremities. The symptoms reported in treatment records range from tingling sensations, to intermittent intense pain in the feet, decreased sensation in the feet, burning in the feet, occasional difficulty with shoes, and numbness when driving. At the January 2016 VA examination, it was noted the Veteran had mild constant pain, moderate numbness, decreased ankle reflex, decreased sensation to cold and position, absent sensation to vibration, and decreased light touch sensation in both lower extremities. No atrophy was noted, and the examiner characterized the condition as mild incomplete paralysis of the sciatic nerve, bilaterally. The January 2016 characterization is the only medical opinion as to the extent of the Veteran’s peripheral neuropathy. However, the symptoms described in that same evaluation are consistent with the reported symptoms and sensation tests up to May 8, 2019. Therefore, the weight of the evidence supports a rating of no more than 20 percent for each lower extremity for that period. A higher rating would require moderate, or greater, incomplete paralysis. There is no indication in the file that the Veteran’s peripheral neuropathy symptoms rose to the moderate or greater level of incomplete paralysis of the sciatic nerve. Symptoms remained generally consistent with those described in the January 2016 examination report for the period prior to May 8, 2019, without any notable increases in severity or new symptoms noted. Therefore, the weight of the evidence is against finding there was a greater than mild incomplete paralysis of the sciatic nerve and a rating in excess of 20 percent prior to May 8, 2019 is not warranted. Since May 8, 2019 On May 8, 2019, the Veteran reported to his private provider that he was experiencing worsening of pain and numbness in both feet. A letter from the provider dated May 14, 2019 indicated the Veteran’s painful neuropathy required him to take precautions. The provider stated that the neuropathy created moderately severe limitations in both lower extremities. As noted, above, the May 14, 2019 letter was not accompanied by any treatment records. Affording the Veteran the benefit of the doubt, the characterization of moderately severe neuropathy related back to the increase described in the May 8, 2019 treatment record. The characterization of moderately severe paralysis was also made in the January 2020 examination which noted severe constant pain, severe paresthesias, sever numbness, and absent light tough sensation in both lower extremities. There was no atrophy present. The examiner initially noted the condition affected the femoral nerve, but in an October 2020 addendum, the examiner explains this was an error and the symptoms reflected moderately severe paralysis of the sciatic nerve. There are no further characterizations of the condition in the record, nor does it reflect that any symptoms beyond those noted in the January 2020 examination. Therefore, the weight of the evidence shows moderately severe incomplete paralysis of the sciatic nerve in each lower extremity from May 8, 2019 forward, which warrants a 40 percent rating. A higher rating of 60 percent would require there to be severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. There are no opinions in the records that characterize the condition as severe incomplete paralysis. Further, there is no evidence of marked muscular atrophy in the lower extremities. As noted above, there was no reported increase in severity or symptoms since the January 2020 examination that characterized the condition as moderate severe incomplete paralysis of the sciatic nerve. Thus, the weight of the evidence is against finding severe incomplete paralysis of the sciatic nerve in either lower extremity. Therefore, a rating of 40 percent, but no greater, for peripheral neuropathy in each lower extremity is warranted for the Veteran’s peripheral from May 8, 2019, forward. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.