Citation Nr: 21064351 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-61 310 DATE: October 19, 2021 ORDER New and material evidence has been received to reopen the previously denied claims for service connection for peripheral neuropathy of bilateral upper and lower extremities, thus, the petitions to reopen are granted. Service connection for peripheral neuropathy of the right upper extremity is granted. Service connection for peripheral neuropathy of the left upper extremity is granted. Service connection for peripheral neuropathy of right lower extremity is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. A rating in excess of 20 percent for diabetes mellitus is denied. FINDINGS OF FACT 1. The claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities were previously denied in an August 2010 rating decision, and this denial was confirmed and continued in March 2011 and August 2013 rating decisions. The Veteran did not appeal these decisions. 2. Evidence added to the record since that August 2013 denial in support of the claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities is not cumulative or redundant and raises a reasonable possibility of substantiating these claims. 3. The Veteran's peripheral neuropathy of the bilateral upper and lower extremities are etiologically related to his service-connected diabetes mellitus. 4. The Veteran's diabetes mellitus requires oral medications and dietary restrictions, but not regulation of physical activity as defined by VA regulations. CONCLUSIONS OF LAW 1. The August 2010, March 2011, and August 2013 rating decisions that denied service connection for bilateral upper and lower peripheral neuropathy of the extremities are a final and binding determinations based on the evidence then of record. 38 U.S.C. § 7104 (b); 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.1103. 2. New and material evidence since has been received to reopen the claims for service connection for bilateral peripheral neuropathy of the bilateral upper and lower extremities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for peripheral neuropathy of the bilateral upper and lower extremities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria are not met for a rating higher than 20 percent for diabetes mellitus. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1971 to May 1973. The Board remanded the claims in August 2019. While on remand, the claim for service connection for hypertension was granted. This constitutes a full grant of benefits sought on appeal with regard to the issue of service connection for hypertension, and therefore, this issue is no longer before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). New & Material Evidence The RO denied the Veteran's claims of entitlement to service connection for bilateral peripheral neuropathy of the bilateral upper and lower extremities in August 2010, March 2011, and August 2013. The Veteran did not appeal the March 2011 or August 2013 decision or submit new and material evidence within one year of the decisions. Thus, all three previous rating decisions are final and binding. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. A claim of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is presumed unless the allegation is beyond the competence of the person making it or inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence has been received to reopen the previously denied claims for service connection for peripheral neuropathy of bilateral upper and lower extremities, thus, the petitions to reopen are granted. In this case, the Board finds that new and material evidence has been received to reopen the previously denied claims for service connection for bilateral peripheral neuropathy of the bilateral upper and lower extremities. Namely, in June 2021, a VA examiner provided a positive nexus opinion relating the Veteran's peripheral neuropathy of the bilateral upper and lower extremities to his service-connected diabetes mellitus. Therefore, the new and material evidence threshold has been met, and the claims are reopened. Service Connection 2., 3., 4., 5., Service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted. Here, the competent and probative evidence supports a finding that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is proximately due to or aggravated by his service-connected diabetes mellitus. In June 2021, a VA examiner thoroughly reviewed and summarized the record, and concluded that, when taking into consideration all available information, it could be said that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities was aggravated by his low vitamin B12 levels as well as his longstanding diabetes mellitus. The Board finds that this opinion is highly probative evidence in favor of the claims. Although there are previous medical opinions of record stating that the Veteran's peripheral neuropathy was likely due to his previous chemotherapy, these opinions did not address the question of whether the Veteran's diabetes mellitus aggravated his bilateral peripheral neuropathy of the upper and lower extremities. Significantly, this new opinion was provided years after the previous negative etiological opinions, and considered more current pathology as noted in the treatment records. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for peripheral neuropathy of the bilateral upper and lower extremities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating 6. A rating in excess of 20 percent for diabetes mellitus is denied. The Veteran's service-connected diabetes mellitus is rated as 20 percent disabling under DC 7913. According to this DC, a 20 percent rating is warranted when the diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A higher 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. An even higher 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, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). The Court has explained that the criteria of DC 7913 are "successive". Successive criteria are when the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (comparing the successive nature of DC 7913 for diabetes mellitus with the non-successive DC 7903 for hypothyroidism). The Court in Camacho made clear that the term "regulation of activities" is specifically defined as "avoidance of strenuous occupational and recreational activities" and that a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id at 363, 364. Moreover, competent medical evidence is required to establish "regulation of activities," namely, avoidance of strenuous occupational and recreational activities. Camacho, 21 Vet. App. at 364. Turning now to the evidence of record, VA treatment records show the Veteran has been prescribed oral medications, insulin, as well as a restricted diet to manage his diabetes. But these records do not show that he also has been prescribed or advised to avoid strenuous occupational and recreational activities due to his diabetes. See 61 Fed. Reg. 20440, 20446 (May 7, 1996) (defining regulation of activities as used by VA in DC 7913). Indeed, to the contrary, exercise and physical activity are encouraged, not discouraged. The Board has reviewed VA treatment records dated throughout the appeal period, including those from most recently. A July 2021 VA treatment record reflects that the Veteran engages in limited exercise due to his pain and neuropathy. However, these records do not demonstrate that he was advised to avoid strenuous activity due to his diabetes. Rather, VA treatment records dated throughout the appeal period, such as in October 2016, reflect that the Veteran was encouraged to exercise at least three times per week. While the Veteran has reported that he is limited in his physical activities due to his diabetes mellitus, there is no indication in the record that his activities have been regulated in the medical record, or that a medical provider has indicated that his activities should be curtailed due to his diabetes mellitus. Thus, the Board finds that the criteria for a rating higher than 20 percent for his diabetes mellitus have not been met. (Continued on the next page) As noted above, while on remand, the claim for service connection for hypertension was granted and assigned a noncompensable rating, and rated with the Veteran's diabetes mellitus. In May 2021, the Veteran filed a Decision Review Request: Higher-Level Review with both the effective date and rating for his service-connected hypertension. These issues were addressed in the July 2021 Higher Level Review decision and the August 2021 Supplemental Review decision. A subsequent appeal to the Board has not be filed at this time. A. J. Spector Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.