Citation Nr: 21072665 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-19 571 DATE: December 6, 2021 ORDER For the period prior to July 15, 2017, entitlement to an evaluation in excess of 10 percent for right lower extremity peripheral neuropathy is denied. For the period prior to July 15, 2017, entitlement to an evaluation in excess of 10 percent for left lower extremity peripheral neuropathy is denied. For the period from July 15, 2017, an evaluation of 20 percent but no higher for right lower extremity peripheral neuropathy is granted. For the period from July 15, 2017, an evaluation of 20 percent but no higher for left lower extremity peripheral neuropathy is granted. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type 2 is denied. REMANDED Entitlement to a compensable rating for peripheral neuropathy of the bilateral upper extremities for the period prior to June 16, 2017 is remanded. Entitlement to a total disability rating based on unemployability (TDIU) for the period prior to September 23, 2013 is remanded. FINDINGS OF FACT 1. For the period prior to July 15, 2017, the Veteran's right lower extremity peripheral neuropathy was manifest by no more than mild incomplete paralysis. 2. For the period prior to July 15, 2017, the Veteran's left lower extremity peripheral neuropathy was manifest by no more than mild incomplete paralysis. 3. For the period from July 15, 2017, the Veteran's right lower extremity peripheral neuropathy was manifest by no more than moderate incomplete paralysis. 4. For the period from July 15, 2017, the Veteran's left lower extremity peripheral neuropathy was manifest by no more than moderate incomplete paralysis. 5. Throughout the appellate period, the Veteran's diabetes mellitus required only restricted diet, one daily injection of insulin, and an oral glycemic agent during the period on appeal. No regulation of activities was required. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy for the period prior to July 15, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 2. The criteria for a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy for the period prior to July 15, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 3. The criteria for a disability rating of 20 percent but no more for right lower extremity peripheral neuropathy for the period from July 15, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 4. The criteria for a disability rating of 20 percent but no more for left lower extremity peripheral neuropathy for the period from July 15, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 5. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1965 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This matter was previously before the Board in January 2019 and February 2021, at which times it was remanded for further development. Increased Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two 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. 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. 1. Entitlement to an evaluation in excess of 10 percent for right lower extremity peripheral neuropathy 2. Entitlement to an evaluation in excess of 10 percent for left lower extremity peripheral neuropathy The Veteran contends that he is entitled to a higher rating for his bilateral lower extremity peripheral neuropathy because of worsening symptoms. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, 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, with 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. 38 C.F.R. § 4.124a. 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 on the relative impairment of motor function, trophic changes, or sensory disturbance. 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. 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 Veteran was afforded a VA peripheral neuropathy examination in December 2012. The examiner indicated the Veteran is diagnosed with mild peripheral neuropathy of the bilateral lower extremities. The Veteran reported occasional numbness and tingling in his toes, as well as some pain at nighttime. He was noted to have mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the bilateral lower extremities. Strength examination was normal; deep tendon reflex exam showed decreased reflexes in the bilateral ankles only; light touch testing was normal; position sense test was normal; vibration sensation was normal; cold sensation was decreased in the lower extremities; and neither muscle atrophy nor trophic changes were shown. The examiner assessed that the Veteran's diabetic peripheral neuropathy of the lower extremity sciatic nerve was reflective of incomplete paralysis which was mild in nature bilaterally. No other pertinent physical findings were reflected, nor was any functional impact noted. The Veteran underwent another VA peripheral nerves examination in August 2014. At that time, he reported pain in his knees and a funny sensation in his feet. He was noted to have mild paresthesias and/or dysesthesias. Strength examination was normal; deep tendon reflex exam showed decreased reflexes in the triceps and absent reflexes in the bilateral ankles; light touch testing was decreased only in the feet and toes; position sense test was normal; and neither muscle atrophy nor trophic changes were shown. The examiner assessed that the Veteran's diabetic peripheral neuropathy of the lower extremity sciatic nerve was reflective of incomplete paralysis which was mild in nature bilaterally. No other pertinent physical findings were reflected, nor was any functional impact noted. The Veteran was afforded another VA peripheral neuropathy examination in July 2017. He reported worsening of his peripheral neuropathy, indicating symptoms of numbness and tingling with sharp pain in his feet, treated with Gabapentin. He was noted to have moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the bilateral lower extremities. Strength examination was normal; deep tendon reflex exam was entirely normal; light touch testing was normal other than decreased sensation in the feet/toes; position sense test was decreased in the bilateral lower extremities; vibration sensation was decreased in the bilateral lower extremities; cold sensation was decreased in the lower extremities; and muscle atrophy was not shown. Trophic changes included scaly, dry skin with loss of hair. However, it was not specified whether these changes affect upper or lower extremities. The examiner assessed that the Veteran's diabetic peripheral neuropathy of the lower extremity sciatic nerve was moderate in nature bilaterally. No other pertinent physical findings were reflected. Functional impact was noted to include difficulty with walking and standing for prolonged periods. The Veteran underwent another VA peripheral neuropathy examination in April 2019. The Veteran reported symptoms of numbness and tingling with pain in his feet, treated with Gabapentin. He was noted to have mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the bilateral lower extremities. Strength examination was normal; deep tendon reflex exam was normal except for decreased sensation in the ankles; light touch testing was normal other than decreased sensation in the feet/toes; position sense test was entirely normal; vibration sensation was decreased in the bilateral lower extremities; and muscle atrophy was not shown, nor were any trophic changes reported. The examiner assessed that the Veteran's diabetic peripheral neuropathy of the lower extremity sciatic nerve was reflective of incomplete paralysis of mild nature bilaterally. Other pertinent physical findings were noted to include skin discoloration and thickening in the lower extremities. No functional impact was noted. The Veteran was afforded his latest VA peripheral neuropathy examination in August 2021. The Veteran reported symptoms of tingling and pain in his lower extremities. He was noted to have moderate intermittent pain in his right lower extremity, mild intermittent pain in the left lower extremity, no paresthesias and/or dysesthesias, and mild numbness in the bilateral lower extremities. Strength examination was normal; deep tendon reflex exam was normal; light touch testing was showed decreased sensation in the lower leg/ankles and feet/toes; trophic changes were noted to include loss of extremity hair and smooth, shiny skin of the lower extremities; and the Veteran's gait was normal. The examiner assessed that the Veteran's diabetic peripheral neuropathy of the lower extremity sciatic nerve was reflective of incomplete paralysis of moderate nature for the Veteran's right lower extremity and of mild nature for the left lower extremity. Assistive devices were noted to include regular use of a cane and walker. There were no additional physical findings. Functional impact was described as difficulty walking and balance issues. In a September 2021 addendum, the examiner specified that the symptoms attributable to the Veteran's bilateral lower extremity peripheral neuropathy, distinct and separate to those produced by peripheral vascular disease, include pain, numbness, weakness, loss of coordination, and decreased sensation of the legs and feet. The Board acknowledges the Veteran's multiple lay statements of record, including in June 2014 and October 2018, when the Veteran reported worsening of his lower extremity symptoms. Following review of the evidence, the Board finds that for the period prior to July 15, 2017, the Veteran's bilateral peripheral neuropathy disability was primarily manifest by impairment of motor functions including mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the bilateral lower extremities. In terms of sensory disturbance, the Veteran has experienced decreased to absent reflexes in the bilateral ankles, decreased light touch sensation and decreased cold sensation in the bilateral lower extremities. However, during this appellate period, neither muscle atrophy nor trophic changes were shown. Furthermore, the entire objective medical record during this appellate period, including both VA examinations of record dated December 2012 and August 2014 respectively reflect that the Veteran had mild incomplete paralysis of the sciatic nerve bilaterally. The same objective medical evidence shows that the Veteran did not have any symptoms of complete sciatic nerve paralysis, including no foot drops or dangles, no restrictions in muscle movement below the knees, and no weakening or loss of flexion of the knees. The Board recognizes the Veteran's lay statements reflective of pain, and finds them credible. However, there is no indication in the record that the Veteran's reported pain exceeds that which is encompassed in the rating criteria. In this regard, the Board reiterates that neither examiner found that the overall level of severity was greater than moderate in his sciatic nerve for the period prior to July 15, 2017. The Board thus finds that the level of impairment for the period prior to July 15, 2017 is most analogous to mild incomplete paralysis. For the period from July 15, 2017, the Board finds that an increased rating of 20 percent but no higher for the Veteran's bilateral lower extremity peripheral neuropathy is warranted. In this regard, during this appellate period, the Veteran's bilateral lower extremity peripheral neuropathy is characterized by moderate incomplete paralysis of the sciatic nerve bilaterally, as indicated by the VA examinations in July 2017 and August 2021. Moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the bilateral lower extremities were reported. Throughout this period, the Veteran also consistently reported numbness, tingling and pain in his feet. In terms of sensory disturbance, the Veteran had decreased reflexes in the bilateral ankles, decreased light touch sensation and decreased cold sensation in the bilateral lower extremities. While there was no muscle atrophy shown during this period, there were bilateral trophic changes. Specifically, there was loss of extremity hair and smooth, shiny skin of the lower extremities. The Board is cognizant that the April 2019 VA examiner and the August 2021 examiner both characterized the Veteran's left lower extremity peripheral neuropathy as "mild". However, the August 2021 examiner specified that the Veteran has difficulty walking, balance issues, and requires regular use of such assistive devices as a cane and walker. These findings are consistent with those of the July 2017 VA examination, which also indicated the Veteran experiences difficulties with walking and standing, as well as the September 2021 addendum, reflective of numbness, weakness, loss of coordination, and decreased sensation of the legs and feet bilaterally. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis in the bilateral lower extremities. A higher rating would not be warranted because the objective medical evidence of record during this appellate period shows that the Veteran did not have any symptoms of complete sciatic nerve paralysis, including foot drops or dangles, restrictions in muscle movement below the knees, or weakening or loss of flexion of the knees. Furthermore, there is no competent medical assessment of record which evaluates the Veteran's lower extremity peripheral neuropathy as moderately severe, severe, or as complete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the period prior to July 15, 2017; it is in favor of a rating of 20 percent but no higher thereafter, and such is granted. 3. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type 2 The Veteran filed a petition for an evaluation in excess of 20 percent for diabetes mellitus, type 2, received on September 13, 2013. The Veteran's diabetes is evaluated as 20 percent disabling throughout the entire appellate period under 38 C.F.R. § 4.119, Diagnostic Code 7913. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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 when diabetes 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 progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only restricted diet and one or more daily injection of insulin as well as an oral glycemic agent during the period on appeal. The Veteran was afforded a VA diabetes examination in November 2016. The examiner indicated that the Veteran's diabetes is managed by restricted diet, prescribed oral hypoglycemic agent, and a daily injection of Victoza. No regulation of activities was noted to be required. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis less than twice per month, and for episodes of hypoglycemia also less than twice per month. During the previous 12-month period, there were no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. Complications of diabetes mellitus, type 2 were noted to include peripheral neuropathy and peripheral vascular disease. There were no additional physical findings and no functional impact was noted. The Veteran underwent another VA diabetes examination in July 2017. The examiner indicated that the Veteran's diabetes is managed by prescribed oral hypoglycemic agent, and a daily injection of insulin. No regulation of activities was noted to be required. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis less than twice per month, and for episodes of hypoglycemia also less than twice per month. During the previous 12-month period, there were no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. Complications of diabetes mellitus, type 2 were noted to include peripheral neuropathy, peripheral vascular disease, erectile dysfunction and hypertension. There were no additional physical findings and no functional impact was noted. The Veteran was afforded another VA diabetes examination in July 2021. The examiner indicated that the Veteran's diabetes is managed by restricted diet and prescribed oral hypoglycemic agent. No regulation of activities was noted to be required. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis less than twice per month, and for episodes of hypoglycemia also less than twice per month. During the previous 12-month period, there were no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. The Veteran was noted to have neither loss of weight nor loss of strength. There were no additional physical findings. Functional impact was noted to include dietary restriction and difficulty walking. The Veteran is competent to report that his diabetes mellitus and complications therefrom have resulted in a functional impact, including inability to drive truck, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board first notes that he is separately evaluated for bilateral lower extremity peripheral vascular disease, bilateral cataracts, bilateral upper and lower extremity peripheral neuropathies, hypertension and erectile dysfunction, all associated with diabetes mellitus. These are also separately addressed. However, the medical evidence of record is against a finding that regulation of activities was required during the period on appeal. None of the VA medical examinations of record, indicate that regulation of activities is required for the Veteran's diabetes mellitus, nor do any VA or private treatment records. Furthermore, it does not follow from the fact that the Veteran is granted individual unemployability due to the combined effect of his service-connected disabilities, including diabetes, that his diabetes required regulation of activities as medical management. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. REASONS FOR REMAND 1. Entitlement to a compensable rating for peripheral neuropathy of the bilateral upper extremities for the period prior to June 16, 2017 is remanded. In February 2021, the Board remanded the claim of entitlement to a compensable evaluation for peripheral neuropathy of the bilateral upper extremities. The Board explicitly instructed that the agency of original jurisdiction (AOJ) obtain a VA peripheral nerves examination, including an opinion based on review of the record, as to the date of onset of the Veteran's upper extremity peripheral neuropathy. The examiner was to specifically consider the Veteran's own upper extremity complaints of symptoms as early as February 2007. The Veteran was afforded a peripheral nerve examination in August 2021. For the bilateral upper extremities, not only did the examiner not consider the Veteran's complaints of symptoms dating from February 2007, he concluded that the Veteran's medical records do not reflect a diagnosis of upper extremity neuropathy. The examiner went as far as providing an unsolicited negative etiological opinion. This is despite the fact that a July 2017 VA examination confirmed the diagnosis of bilateral upper extremity peripheral neuropathy, provided a positive etiological opinion, and the fact that the Veteran is already service-connected for this disability. As such, the VA medical opinion obtained by the AOJ not only is based on an inaccurate factual premise, it is also entirely unresponsive to Board instructions. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value); Stegall v. West, 11 Vet. App 268 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). Given the foregoing, the Board finds that remand is necessary for a new and/or adequate examination which complies with its remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007)(noting that once VA provides an examination, VA has a duty to ensure that the examination is adequate for evaluation purposes). 2. Entitlement to a total disability rating based on unemployability (TDIU) for the period prior to September 23, 2013 is remanded. Because a decision on the upper extremity peripheral neuropathy claim could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). A remand of the claim for a TDIU is, therefore, also required. The matters are REMANDED for the following action: 1. With any assistance required of the Veteran, obtain all outstanding VA and private treatment records, to include any records relating to peripheral neuropathy of the upper extremities prior to June 2017, and associate them with the claims file. 2. Then, forward the claims file to an appropriately qualified VA examiner for an opinion as to the severity of his service-connected bilateral upper extremity peripheral neuropathy for the period prior to June 2017. The determination of whether an in-person or tele-health examination is necessary is left at the discretion of the examiner, and should it be so deemed, one must be scheduled. The claims folder must be made available to the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported. All objective and subjective symptoms should be described in detail. In particular, the examiner should approximate the date of onset of the Veteran's peripheral neuropathy of the upper extremities with consideration of complaints of upper extremity symptoms as early as February 2007, review of the claims file including contemporaneous medical records, and the Veteran's own lay statements. (Continued on the next page) A rationale for all opinions should be provided. If you cannot provide any of the requested opinions without resorting to speculation, please indicate this and provide a supporting rationale as to why that is so. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.