Citation Nr: 21003960 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-22 865A DATE: January 25, 2021 REMANDED Entitlement to a rating in excess of 20 percent for diabetes with erectile dysfunction, neuropathy, and hypertension is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1964 to November 1967 with additional service in the Reserves. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2011 rating decision continuing the 20 percent rating for diabetes and decreasing the ratings for right and left lower extremity peripheral neuropathy to noncompensable, effective December 29, 2010. A January 2014 rating decision increased the ratings for right and left lower extremity peripheral neuropathy to 10 percent prior to May 29, 2013, and 20 percent from May 29, 2013. In December 2017, the Board remanded the claims for further development. In August 2019, the Board denied ratings in excess of 20 percent for diabetes, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy, among other things. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In August 2020, the Court granted the parties’ July 2020 Joint Motion for Partial Remand (JMPR) to vacate the August 2019 Board decision to the extent it denied ratings in excess of 20 percent for diabetes, right lower extremity peripheral neuropathy, and left lower extremity peripheral neuropathy, and to remand those matters for further development and readjudication. 1. Entitlement to a rating in excess of 20 percent for diabetes with erectile dysfunction, neuropathy, and hypertension is remanded. The Board, in the August 2019 decision, denied an increased rating greater than 20 percent for diabetes, in part finding the preponderance of the evidence was against a finding that the Veteran’s diabetes required a regulation of activities. As agreed upon in the July 2020 JMPR, however, the record appears to raise some medical ambiguity on the matter and, therefore, a remand for a new VA medical opinion to clarify whether the Veteran’s diabetes requires a regulation of activities is warranted. In particular, the July 2020 JMPR notes the Veteran’s VA primary care physician regulated his activities insofar as that he was not to engage in “strenuous activities” only light activities. See Veteran’s December 2014 Statement. Further, a lay person is competent to report his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). On the other hand, VA treatment records do not show VA physician-prescribed regulation of activities due to the Veteran’s diabetes. Rather, the records only show the Veteran’s VA primary care physician discussed diet and exercise with the Veteran in relation to his diabetes and that his insulin dose was increased because his blood sugar was uncontrolled. See, e.g., March 2014 VA Treatment Record. Also of record, is a May 2013 VA examination report indicating in general a regulation of activities is part of medical management of diabetes, but then explained that the Veteran applies the recommended diet regulation and was told to exercise more. The March 2018 VA examiner, in contrast, did not note at all that regulation of activities was part of the Veteran’s diabetes management. Thus, in the interest of being in compliance with the JMPR that highlighted some ambiguities in the record, the Board finds it prudent to obtain a more current VA medical opinion to resolve whether the Veteran’s diabetes requires or ever required regulation of activities at any point during the appeal period. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is remanded. 3. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is remanded. As noted in the July 2020 JMPR, the March 2018 VA examiner reported that the current severity of the Veteran’s bilateral peripheral neuropathy could not be determined in the absence of an electromyography (EMG) or a nerve conduction study (NCS). The VA examination report does not show that such studies were accomplished. Accordingly, remand is warranted to obtain a new VA examination to assess the current severity of the Veteran’s bilateral peripheral neuropathy, including any necessary testing. While this matter is on remand, any additional outstanding VA treatment records should be obtained, including any treatment records from November 2019 to the present. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records, to include any VA treatment records from November 2019 to the present. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether the Veteran’s diabetes required regulation of activities at any point during the appeal period (from September 2009 to the present). Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. The examiner should consider all medical and lay evidence of record. The examiner MUST address the Veteran’s December 2014 report that his VA primary care physician regulated his activities in that he was not to engage in strenuous activities, only light activities. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. 3. After outstanding records are obtained to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral peripheral neuropathy of the lower extremities. The entire claims file should be reviewed by the examiner and any appropriate tests conducted, including any EMG or NCS deemed warranted. The Veteran’s reports should be considered, including reports of constant burning pain in his feet. The Veteran’s symptomatology should be described in detail, including those used in the rating criteria. The March 2018 VA examiner reported that the current severity of the Veteran’s bilateral peripheral neuropathy could not be determined in the absence of an EMG or NCS. If the examiner does not conduct EMG or NCS testing, the examiner must explain why. 4. After the above development, and any other development deemed necessary, readjudicate the claims, to include consideration of whether separate ratings are warranted for sciatic nerve impairment of the lower extremities. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.