Citation Nr: A21016263 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 210920-186372 DATE: October 1, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for Deep Vein Thrombosis (DVT) of the right lower extremity, including as secondary to the diabetes (so on the premise that it, too, is a complication), is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the diabetic peripheral neuropathy of the Veteran's right lower extremity, at most, has caused what amounts to "moderate" incomplete paralysis. 2. The DVT of his right lower extremity is not due to his service including not caused or aggravated by his service-connected Type 2 Diabetes Mellitus. CONCLUSIONS OF LAW 1. Throughout the rating period on appeal, the criteria are not met for entitlement to an initial rating higher than 20 percent for the diabetic peripheral neuropathy of the right lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code (DC/Code) 8620. 2. The criteria also are not met for entitlement to service connection for DVT of the right lower extremity including as secondary to the service-connected Type 2 Diabetes Mellitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969. This appeal to the Board of Veterans' Appeals (Board) is from a March 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the RO (Agency of Original Jurisdiction (AOJ)) decision that he has appealed. See 38 C.F.R. § 20.301. Increased Rating 1. Entitlement to an initial disability rating higher than 20 percent for the diabetic peripheral neuropathy of the right lower extremity The Veteran contends that a higher 40 percent rating is warranted for this disability, which is a complication of his Type 2 Diabetes Mellitus. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's right lower extremity diabetic peripheral neuropathy has been rated initially as 20-percent disabling effectively since October 23, 2020 under 38 C.F.R. § 4.124A, DC 8620. DC 8620 pertains to neuritis of the sciatic nerve. According to DC 8620, a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately-severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). These descriptive terms "moderate," "moderately severe", and "severe" are not specifically defined in the Rating Schedule; rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. 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. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 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 disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating that may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. According to 38 C.F.R. § 4.124A, when the involvement is wholly sensory, the evaluation should be for the mild, or at the most, the moderate degree. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When the rating impairment is wholly sensory, a rating commensurate with mild incomplete paralysis is reasonably assigned when symptoms are recurrent but not continuous and are not noted, when occurring, to be more than moderate. Moreover, physical manifestations do not automatically require a rating in excess of moderate incomplete paralysis. Miller, 28 Vet. App. at 379-80. Rather, wholly sensory impairment may only be rated commensurate with mild or moderate impairment. Turning now to the relevant evidence in this case at hand, the report of a March 2021 VA examination shows the Veteran reported increased pain, numbness and tingling in his right foot that goes up his leg into his groin area and frequent cramping in his right lower leg. On objective physical examination, the examiner noted that the Veteran has moderate, constant pain, paresthesias or dysesthesias, and numbness. The examiner explained that the overall level of diabetic peripheral neuropathy was best described as incomplete paralysis that is moderate in nature. That examiner's assessment does not tend to suggest that a higher rating is warranted since there is not the required indication of moderately severe or severe diabetic peripheral neuropathy of this extremity. The more severe symptoms or physical manifestations (e.g., muscle weakness, muscle atrophy and diminished or absent reflexes), such as to warrant higher ratings, are not shown or substantiated. In addition, the Veteran has not reported more severe symptoms, such as loss of muscle strength, atrophy of the muscle, or that his foot dangles and/or drops. The Board has considered the Veteran's lay statements that his right leg hurts constantly and that there is no position in which he could place his leg that would alleviate his pain. See August 2021 Statement in Support of VA Form 10182. He is competent to report experiencing pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to assess the functional impact of his pain, including the severity of his nerve damage in terms of whether moderate, moderately severe, or severe, etc., since this determination is medically complex and based on the results of objective testing, not instead merely his lay observation. Therefore, the Board gives more probative weight to the March 2021 VA examiner's opinion concerning this determinative issue. The Board also has considered the Veteran's contention that the March 2021 VA examination was inadequate. See August 2021 Statement in Support of VA Form 10182. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the Veteran raise the issue of the competency of the medical examiner is best referred to simply as a "requirement" and not a "presumption of competency." See Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). However, the Federal Circuit Court also clarified in Francway that, "whether an examiner is competent and whether he [or she] has rendered an adequate exam are two separate inquiries." Francway at 1381 (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc), modified on other grounds by Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019) (en banc). Here, notably, there is no suggestion the examiner was not competent to perform that evaluation or credible in reporting the findings, which address all relevant rating criteria. Moreover, there is rationale for the examiner's findings and conclusions, so a tenable basis for them. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons and bases, the Board finds that an initial rating greater than 20 percent is not warranted for diabetic peripheral neuropathy of the right lower extremity at any point during the period on appeal, meaning at any time since October 23, 2020. See Fenderson v. West, 12 Vet. App. 119 (1999). Service Connection 2. Entitlement to service connection for DVT of the right lower extremity, including as secondary to the service-connected Type 2 Diabetes Mellitus The Veteran contends that the DVT of his right lower extremity is either the direct or presumptive result of his service, from exposure to herbicides, or alternatively is secondary to his Type 2 Diabetes Mellitus that, itself, was service connected on the premise that it is the presumptive result of his presumed exposure to herbicides. Service connection is granted for disability due to disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The statutory provision specifically covering Agent Orange is 38 U.S.C. § 1116. According to 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the listed diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Veteran's exposure to herbicide agents already has been conceded with the grant of service connection for his Type 2 Diabetes Mellitus since presumptively associated with exposure to herbicides (especially the dioxin in Agent Orange). However, unlike his diabetes, DVT is not one of the conditions presumptively associated with exposure to herbicides. See 38 U.S.C. § 1116, 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this circumstance, however, a Veteran may still establish his entitlement to service connection with proof of direct causation, i.e., with probative evidence directly linking this claimed condition to his presumed exposure to Agent Orange in Vietnam or by secondary service connection. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). Service connection may be established on a secondary basis for a disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has a confirmed diagnosis of DVT and, as mentioned, already has established service connection for his Type 2 Diabetes Mellitus on the premise that it is the presumptive result of his presumed exposure to Agent Orange. Therefore, resolution of this appeal turns, instead, on whether there also is the required attribution of his DVT to his military service, including by showing it was caused or is aggravated by his service-connected Type 2 Diabetes Mellitus. See, e.g., Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Unfortunately, however, it is in these equally critical other respects that the evidence is less favorable to his claim. The Veteran's service treatment records (STRs) are grossly unremarkable for any relevant complaints, symptoms, diagnosis, or treatment of DVT during his service. The same is true for many ensuing years. Moreover, at the conclusion of the March 2021 VA examination, the examiner opined that the Veteran's currently diagnosed DVT is less likely than not (less than 50 percent probability) proximately due to or the result of his diabetes mellitus or presumed exposure to herbicide agents. This examiner explained that DVT occurs when a blood clot (thrombus) forms in one or more of the deep veins in the body. This examiner then expounded, further explaining that the main causes of DVT are damage to a vein from surgery or trauma and inflammation due to infection or injury. This VA examiner also cited to a medical article noting that the following are risk factors: persons older than 60 years, sitting for long periods of time, prolonged bed rest, injury to veins or surgery, pregnancy, inherited clotting disorder, oral contraceptives, or hormone replacement therapy, being overweight or obese, smoking, cancer, heart failure, Inflammatory bowel disease, family history, and genetics. This VA examiner pointed out the Veteran has multiple risk factors for blood clots including age, smoking, and obesity. Ultimately, then, this VA examiner determined there is no evidence that the Veteran's DVT is secondary to his Type 2 Diabetes Mellitus or from exposure to an herbicide agent in service. That March 2021 VA examiner's opinion provides the required underlying reasoning (rationale) and cites to data supporting the opinion, so it is entitled to a lot of probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It certainly is more probative than the Veteran's unsubstantiated lay assertion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Although the Veteran has a current diagnosis of DVT, the preponderance of the evidence weighs against finding that it began during his service, within a year of his discharge, or is otherwise related or attributable to his service including to his presumed exposure to Agent Orange or caused or aggravated by his Type 2 Diabetes Mellitus that is a presumed result of that exposure. These determinations are beyond his lay competence. Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed in terms of whether simple versus complex. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). See also 38 C.F.R. § 3.159(a)(1) and (2). DVT is a complex not merely simple condition. Therefore, the Board finds that entitlement to service connection for DVT, including due to exposure to herbicide agents and/or as secondary to already determined to be service-connected Type 2 Diabetes Mellitus, is not warranted. The benefit of the doubt doctrine is not applicable since, for the reasons and bases discussed, the preponderance of the evidence is against this claim, not instead supportive of it or even in relative balance (equipoise). 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, Associate 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.