Citation Nr: 21071335 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-50 850 DATE: November 30, 2021 ORDER For the initial rating period from March 31, 2008 to November 24, 2010, a disability rating higher than 10 percent for diabetes mellitus type II with nuclear sclerosis cataracts (diabetes mellitus) is denied. For the initial rating period from November 24, 2010, a disability rating higher than 20 percent for diabetes mellitus is denied. For the initial rating period from March 31, 2008 to September 6, 2016, a disability rating higher than 20 percent for left upper extremity (LUE) peripheral neuropathy is denied. For the initial rating period from March 31, 2008 to September 6, 2016, a disability rating higher than 20 percent for right upper extremity (RUE) peripheral neuropathy is denied. For the initial rating period from September 6, 2016, a 40 percent disability rating, but no higher, for (major) LUE peripheral neuropathy is granted. For the initial rating period from September 6, 2016, a 30 percent disability rating, but no higher, for (minor) RUE peripheral neuropathy is granted. FINDINGS OF FACT 1. From March 31, 2008 to November 24, 2010, the service-connected diabetes mellitus did not require one or more daily injection of insulin and restricted diet, or hypoglycemic oral agent and restrictive diet. 2. From November 24, 2010, the service-connected diabetes mellitus did not require one or more daily injection of insulin, restricted diet, and regulation of activities. 3. From March 31, 2008 to September 6, 2016, the LUE peripheral neuropathy did not approximate moderate incomplete paralysis of the lower radicular nerve group. 4. From March 31, 2008 to September 6, 2016, the RUE peripheral neuropathy did not approximate moderate incomplete paralysis of the lower radicular nerve group. 5. From September 6, 2016, the (major) LUE peripheral neuropathy approximated moderate incomplete paralysis of the lower radicular nerve group. 6. From September 6, 2016, the (minor) RUE peripheral neuropathy approximated moderate incomplete paralysis of the lower radicular nerve group. CONCLUSIONS OF LAW 1. From March 31, 2008 to November 24, 2010, the criteria for an initial disability rating in excess of 10 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. From November 24, 2010, the criteria for an initial disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, DC 7913. 3. From March 31, 2008 to September 6, 2016, the criteria for an initial disability rating in excess of 20 percent for LUE peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8512. 4. From March 31, 2008 to September 6, 2016, the criteria for an initial disability rating in excess of 20 percent for RUE peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8512. 5. Resolving reasonable doubt in the appellant's favor, from September 6, 2016, the criteria for a 40 percent initial disability rating, but no higher, for (major) LUE peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8512. 6. Resolving reasonable doubt in the appellant's favor, from September 6, 2016, the criteria for a 30 percent initial disability rating, but no higher, for (minor) RUE peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to December 1969. The Veteran died in June 2021. The appellant is the Veteran's surviving spouse, who has been substituted in this claim. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision from the Regional Office (RO), which, in pertinent part, granted service connection for diabetes mellitus with peripheral neuropathy of the upper and lower extremities, assigning a 10 percent initial disability rating (effective March 31, 2008). During the course of the appeal, the RO granted a staged 20 percent ratings for diabetes mellitus from November 24, 2010, and granted separated compensable 20 ratings for right and left upper extremity peripheral neuropathy from March 31, 2008 respectively. As the Veteran did not express satisfaction with the assigned ratings, the appeal continued. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2019, the Board remanded the issues on appeal for additional development, including to obtain outstanding VA treatment records and to obtain VA diabetes and peripheral neuropathy examinations. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the February 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran's previous representative also asserted that visual impairment should be considered as a complication of the service-connected diabetes mellitus. See May 2017 correspondence. A February 2021 rating decision granted service connection for nuclear sclerosis cataracts as a noncompensable (0 percent) complication of the service-connected diabetes. (38 C.F.R. § 3.310). The Veteran did not appeal the noncompensable rating assigned to the service-connected nuclear sclerosis cataracts, so the matter is not on appeal before the Board. The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for diabetes mellitus and bilateral upper extremity peripheral neuropathy. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999 In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Rating Diabetes Mellitus from March 31, 2008 to November 24, 2010 The diabetes mellitus is assigned a 10 percent initial disability rating from March 31, 2008 to November 24, 2010 under Diagnostic Code 7913. 38 C.F.R. § 4.119. The Veteran's previous attorney asserted that a higher 20 percent rating is warranted for diabetes mellitus from March 2008. Specifically, the attorney asserted that a November 2010 treatment note indicated that the Veteran was diagnosed was diabetes mellitus with diet restriction four years, and that the Veteran was prescribed Metformin, so it's reasonable to believe the Veteran's treatment regimen was implemented at the time of diagnosis. See May 2021 correspondence. Under DC 7913, diabetes mellitus manageable by restricted diet only is rated at 10 percent. Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. 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 rated, is rated at 60 percent. Diabetes mellitus requiring 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 progressive loss of weight and strength or complications that would be compensable if separately rated, is rated at 100 percent. 38 C.F.R. § 4.119. Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. Id. After review of the lay and medical evidence, the Board finds that, for the initial rating period from March 31, 2008 to November 24, 2010, diabetes mellitus symptoms and impairment did not approximate the criteria for a higher 20 percent rating, that is, for this period diabetes mellitus did not require insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A review of the private treatment records shows a new onset of diabetes mellitus in July 2007 per laboratory studies that showed fasting sugars of 139 and A1c of 6.2. At that time, the Veteran's treating physician advised that the Veteran's sugars were not bad enough to require medication, but that the Veteran did require lifestyle changes in the form of recommended diet and exercise. Private and VA treatment records dated through May 2010 indicate that the Veteran's diabetes was managed on diet and exercise only with no medications prescribed. See July 207, April 2008 private treatment records, May 2010 VA treatment record. During a July 2008 VA examination, the Veteran reported that his diabetes was managed with diet and exercise only, and specifically denied any treatment with medication. See July 2008 VA examination report. The first evidence of prescribed medication for diabetes in not noted until November 24, 2010, when a VA treatment note indicated that the Veteran was prescribed Metformin for diabetic control, as the blood glucose had been slowly creeping up. Thereafter, in a statement dated November 27, 2010, the Veteran requested a higher rating for diabetes and wrote that he was recently placed on medication for diabetic control, which further supports that finding that diabetes did not require medication management with insulin or a hypoglycemic oral agent prior to November 2010. See November 2010 VA treatment record; see also November 2010 Statement in Support of the Claim. The evidence of record reflects that, for the initial rating period from March 31, 2008 to November 24, 2010, diabetes mellitus did not approximate daily insulin injection and diet restriction or oral hypoglycemic agent and diet restriction, as required for a higher 20 percent rating. As the preponderance of the evidence is against the appeal for a higher rating from March 31, 2008 to November 24, 2010 for diabetes mellitus, the appeal for a higher initial rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.119, DC 7913. 2. Rating Diabetes Mellitus from November 24, 2010 After review of the lay and medical evidence, the Board finds that, for the rating period from November 24, 2010, diabetes mellitus symptoms and impairment did not approximate the criteria for a higher 40 percent rating, that is, diabetes mellitus requiring insulin, restricted diet, and regulation of activities. VA outpatient treatment records continue to show that the diabetes mellitus was managed with oral hypoglycemic agents, insulin, and regulation of diet alone. See November 2010, May 2013, November 2016, August 2019 VA treatment records. Additionally, the VA examination reports in March 2011, September 2016, and January 2021 have indicated that diabetes mellitus does not require treatment with regulation of activities, as diabetic care providers have only prescribed oral hypoglycemic agents or insulin and regulation of diet throughout the period on appeal and have not placed any restrictions on strenuous activities due to diabetes. See March 2011, September 2016, and January 2021 VA examination reports. In fact, VA treatment notes indicate that the Veteran was advised to continue regular exercise to manage the diabetes. See November 2010, May 2013, August 2016, November 2016 VA treatment records. As the evidence does not show the need for regulation of activities, a higher 40 percent rating is not warranted for diabetes mellitus for the rating period from November 24, 2010. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, DC 7813. 3. Rating LUE Peripheral Neuropathy from March 31, 2008 to September 6, 2016 4. Rating RUE Peripheral Neuropathy from March 31, 2008 to September 6, 2016 The right and left upper extremity peripheral neuropathies each have been rated at 20 percent respectively for incomplete paralysis of the lower radicular nerve group under the criteria found at 38 C.F.R. § 4.124a, DC 8512. Diagnostic Code 8512 provides ratings for paralysis of the lower radicular group of nerves. DC 8512 provides that mild incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the lower radicular group, with all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand), is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a. 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. After review of all the evidence, lay and medical, the Board finds that the criteria for higher 40 percent and 30 percent ratings under DC 8512 for LUE and RUE peripheral neuropathy, respectively, have not been met for the rating period from March 31, 2008 to September 6, 2016. VA treatment records during the relevant rating period indicate that the Veteran had peripheral neuropathy due to diabetes mellitus, but was silent as to specific signs or symptoms of the bilateral upper extremity peripheral neuropathy. VA examinations were provided in July 2008 and March 2011. The examiners noted the Veteran's report of some numbness in the hands and dropping things from his hands at times. Upon examination, the examiners noted decreased sensation from the hands to the forearms; however, the examiners assessed no trophic changes, normal (2+) reflexes, and normal (5/5) motor strength in the bilateral upper extremities. Additionally, there were no reported symptoms of pain (intermittent or dull) or dysesthesias/paresthesias in the bilateral upper extremities. See July 2008 and March 2011 VA examination reports. In light of reports symptoms of some numbness in the hands with clinical findings of diminished sensation in the upper extremities, but otherwise no pain, no decrease in muscle strength or reflexes, and no atrophy in the upper extremities, the Board finds that for this rating period the peripheral neuropathy of the left and right upper extremities more nearly approximates mild incomplete paralysis of the lower radicular group of nerves (which warrants a 20 percent rating respectively), and does not more nearly approximate moderate incomplete paralysis of the lower radicular group of nerves. For this reason, higher 40 and 30 percent ratings are not warranted for LUE and RUE peripheral neuropathy under 38 C.F.R. § 4.124a, DC 8512 for the period from March 31, 2008 to September 6, 2016. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Rating LUE Peripheral Neuropathy from September 6, 2016 6. Rating RUE Peripheral Neuropathy from September 6, 2016 The right and left upper extremity peripheral neuropathies each have been rated at 20 percent respectively for incomplete paralysis of the lower radicular nerve group under 38 C.F.R. § 4.124a, DC 8512, for the period from September 6, 2016 forward. The Veteran's previous attorney in a May 2017 statement indicated that the examiner noted severe symptoms of peripheral neuropathy pursuant to the symptoms the Veteran reported on his pre-examination questionnaire; however, the examiner found normal clinical signs upon examination without addressing discrepancy with the symptoms reported. The attorney asserts that a higher 30 percent rating was warranted for the bilateral upper extremity peripheral neuropathy. See May 2017 correspondence. After review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the criteria for a higher 40 percent and 30 percent ratings, respectively, under DC 8512 for the left (major) and right (minor) upper extremity peripheral neuropathy have been met from September 6, 2016 forward. The Veteran was provided a VA peripheral nerves examination in September 2016. At the time the Veteran reported that the upper extremity neuropathy had worsened with intensified stabbing pains. Further, the Veteran endorsed symptoms of severe constant pain, paresthesias, and numbness and moderate intermittent pain in the bilateral upper extremities. Upon examination, the VA examiner noted normal light touch and position sense, as well as normal (5/5) strength, normal (2+) deep tendon reflexes, and no muscle atrophy in the upper extremities. Based upon these findings, the examiner assessed that the bilateral upper extremity peripheral nerve was quiescent. See September 2016 VA examination report. However, a November 2018 VA treatment note reflects that Veteran's report of worsening neuropathy in the upper extremities. A new VA peripheral nerve examination was provided in January 2021. At that time the Veteran endorsed numbness in the hands and tingling in the fingertips most of the time that may cause him to drop things from his hands. The Veteran endorsed symptoms of mild constant pain, paresthesias/dysesthesias, and numbness in the bilateral upper extremities and moderate intermittent pain in the upper extremities. The VA examiner noted decreased light touch in the hands and fingers, but otherwise normal position, vibration, and cold sensation in the upper extremities. The VA examiner continued to observe normal (5/5) muscle strength and normal (2+) reflexes in the upper extremities with no muscle atrophy. The examiner remarked that there was moderate neuropathy in the upper extremities. See January 2021 VA examination report. The Board has considered the Veteran's lay report of severe symptoms of bilateral upper extremity neuropathy with intensified stabbing pain in the September 2016 VA examination report; however, in light of reports of no more than mild to moderate symptoms during the January 2021 VA examination, as well normal to diminished sensation upon examination and normal strength and reflexes throughout the rating period, a severe degree paralysis of the lower radicular nerve group is not indicated for this rating period. In light of lay reports of worsening symptoms, including the onset of neuropathic pain in the upper extremities, the Board has resolved reasonable doubt in the appellant's favor in finding that, for the rating period from September 6, 2016 forward, the disability picture of the LUE and RUE peripheral neuropathy more nearly approximated moderate incomplete paralysis of the lower radicular nerve group. For this reason, the Board finds that higher 40 percent and 30 percent ratings are warranted for peripheral neuropathy of the LUE and RUE respectively for the period from September 6, 2016 forward. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8512. The Board finds that the disability picture of the LUE and RUE peripheral neuropathy have not approximated severe incomplete paralysis of the lower radicular nerve groups. Although the bilateral upper extremity peripheral neuropathy has manifest as mild to moderate symptoms of neuropathy with diminished sensation, the Veteran's reflexes and muscle strength remained intact (normal) during the rating period with no evidence of muscle atrophy. When the involvement is wholly sensory, a rating greater than a moderate degree of incomplete paralysis is not warranted. 38 C.F.R. §§ 4.124a. For this reason, the Board finds that higher 50 and 40 percent ratings are not warranted for peripheral neuropathy for either the left or right upper extremities under 38 C.F.R. § 4.124a, DC 8512 for the period from September 6, 2016, and initial rating in excess of 40 and 30 percent for this period must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.