Citation Nr: 21073950 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-00 446 DATE: December 13, 2021 ORDER Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction is denied. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's service-connected peripheral neuropathy of the left upper extremity has been productive of a disability picture consistent with mild incomplete paralysis of the median nerve; there is no showing of moderate incomplete paralysis. 2. Throughout the course of the appeal, the Veteran's service-connected peripheral neuropathy of the right upper extremity has been productive of a disability picture consistent with mild incomplete paralysis of the median nerve; there is no showing of moderate incomplete paralysis. 3. Throughout the course of the appeal, the Veteran's service-connected peripheral neuropathy of the left lower extremity has been productive of a disability picture consistent with mild incomplete paralysis of the sciatic nerve; there is no showing of moderate incomplete paralysis. 4. Throughout the course of the appeal, the Veteran's service-connected peripheral neuropathy of the right lower extremity has been productive of a disability picture consistent with mild incomplete paralysis of the sciatic nerve; there is no showing of moderate incomplete paralysis. 5. Throughout the course of the appeal, the Veteran's diabetes mellitus, type II, , with erectile dysfunction required restricted diet and one or more daily injections of insulin and an oral hypoglycemic agent, but has not been shown to require regulation of activities; there is no evidence of penile deformity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8515. 2. The criteria for a rating in excess of 10 percent for the Veteran's peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8515. 3. The criteria for a rating in excess of 10 percent for the Veteran's peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 10 percent for the Veteran's peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 1969 to July 1971. The Board remanded this matter for further development in April 2019 and July 2021. Most recently, the Board remanded these matters to afford the Veteran VA examinations, which was done in September 2021. The Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As in the instant case, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Entitlement to ratings in excess of 10 percent for peripheral neuropathy of the left upper extremity and right upper extremity The Veteran is seeking ratings in excess of 10 percent for his peripheral neuropathy of the left and right upper extremities. These disabilities have been rated as 10 percent disabling each pursuant to Diagnostic Code 8515 for paralysis of the median nerve. Under Diagnostic Code 8515, incomplete paralysis of the median nerve of the major hand warrants a 10 percent rating when mild, a 30 percent rating when moderate, and a 50 percent rating when severe. Complete paralysis of the median nerve of the major hand warrants a 70 percent rating. Further, incomplete paralysis of the median nerve of the minor hand warrants a 10 percent rating when mild, a 20 percent rating when moderate, and a 40 percent rating when severe. Complete paralysis of the median nerve of the minor hand warrants a 60 percent rating. 38 C.F.R. § 4.124a , Diagnostic Code 8515. Based on a thorough review of the evidence, the Board finds that ratings in excess of 10 percent are not warranted for the Veteran's service-connected peripheral neuropathy of the left and right upper extremities. In this regard, the September 2021 VA examiner characterized the Veteran's disability of both upper extremities as mild incomplete paralysis of the median nerve, which is the criteria for a 10 percent rating. The VA examination also showed that there was no muscle atrophy or trophic changes. The Veteran's peripheral neuropathy also did not impact his ability to work. The prior May 2014 VA examiner also indicated that the Veteran suffered from no more than mild diabetic neuropathy and stated that his functional impairment was likely caused by unrelated cervical myelopathy and radiculopathy. VA clinical records do not address the severity of this disorder for rating purposes. As such, the Board finds that increased ratings are not warranted as the Veteran's disability picture does not more nearly approximate moderate paralysis of the median nerve. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007) are appropriate for the Veteran's peripheral neuropathy of the upper extremities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against entitlement to ratings in excess of 10 percent each for the Veteran's peripheral neuropathy of the left and right upper extremities. As the preponderance of the evidence is against a finding that a higher rating is warranted, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to ratings in excess of 10 percent for peripheral neuropathy of the left lower extremity and right lower extremity The Veteran is also seeking increased ratings for peripheral neuropathy of his lower extremities. Initially, the Board notes that the Veteran's peripheral neuropathy of the lower extremities has been rated under 38 C.F.R. § 4.124(a), Diagnostic Code 8521 for incomplete paralysis of the external popliteal nerve. Nevertheless, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In this case, the most recent VA examiner found that the Veteran's neuropathy of the lower extremities primarily affects the sciatic nerve. Thus, the Board finds that this disability is more properly rated under 38 C.F.R. § 4.124(a), Diagnostic Code 8520, for incomplete paralysis of the sciatic nerve. The agency of original jurisdiction previously considered the criteria under this code in the October 2021 supplemental statement of the case. As such, there is no prejudice to the Veteran in the Board considering these criteria herein. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Based on the evidence of record, the Board finds that the Veteran is not entitled to disability ratings in excess of 10 percent at any time during the course of the appeal. The Veteran's peripheral neuropathy of the bilateral lower extremities is best characterized as mild incomplete paralysis of the sciatic nerve, which warrants the current 10 percent disability ratings during this period. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In this regard, the September 2021 VA examiner characterized the peripheral neuropathy of the bilateral lower extremities as mild incomplete paralysis of the sciatic nerve. The VA examination also showed that there was no muscle atrophy or trophic changes. Moreover, the Veteran's peripheral neuropathy did not impact his ability to work. The prior May 2014 VA examiner also indicated that the Veteran suffered from no more than mild diabetic neuropathy and that his leg weakness and pain were likely caused by unrelated myelopathy and radiculopathy. VA clinical records do not address the severity of this disorder for rating purposes. As such, the Board finds that increased ratings are not warranted as the Veteran's disability picture does not more nearly approximate moderate paralysis of the sciatic nerve. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007) are appropriate for the Veteran's peripheral neuropathy of the lower extremities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against entitlement to ratings in excess of 10 percent each for the Veteran's peripheral neuropathy of the left and right lower extremities. As the preponderance of the evidence is against a finding that a higher rating is warranted, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction The Veteran asserts that an increased rating is warranted for his diabetes mellitus, type II. He has indicated that a higher rating is necessary because has he has to take two types of insulin. The Veteran's diabetes mellitus, type II, is rated 20 percent disabling under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated as 20 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated as 40 percent disabling. 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 as 60 percent disabling. 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 rated, is rated as 100 percent disabling. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. Based on the evidence of record, the Board finds that at no time during the course of the appeal has the Veteran's disability met the criteria for a 40 percent disability rating. Specifically, while the evidence shows the Veteran has been prescribed an oral hypoglycemic agent, takes insulin daily and uses a restricted diet to control his diabetes, he has not been prescribed limited physical activity or advised to avoid strenuous occupational or recreational activities. Importantly, the September 2021 VA examination clearly showed that the Veteran is not required to regulate activities. Moreover, the prior May 2014 VA examiner also found that the Veteran was not required to regulate activities as part of his medical management for his diabetes mellitus. VA clinical records are also silent with respect to any need to regulate activities. Furthermore, the record reveals no episodes of ketoacidosis or hypoglycemic reactions, no hospitalizations, and no progressive loss of weight or strength. Again, the most recent VA examiner found no such complications. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of diabetes mellitus type II. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Veteran appears to primarily assert that he should be afforded an increased rating due to the increase in medications, specifically insulin injections. Nevertheless, while the rating criteria considers the need for insulin and/or oral hypoglycemic agent, it does not provide for a higher rating based on the number of medications or the number of times taken during the course of the day. In sum, the probative evidence of record shows that the Veteran has not been required to regulate his activities as defined by the rating criteria. Therefore, the criteria for an increased rating for diabetes mellitus, type II, under the criteria of Diagnostic Code 7913, are not met. As the criteria for the next higher, 40 percent, rating are not met and the criteria are cumulative, it follows that the criteria for an even higher rating (60 or 100 percent) likewise are not met. In accordance with Note (1), the Board will now consider the Veteran's complications of diabetes. The Veteran has already been awarded service connection and assigned separate disability ratings for his complications of peripheral neuropathy of the upper extremities and lower extremities, which have been addressed above. Importantly, the September 2021 VA examiner specifically found that the Veteran did not suffer from any other complications. Based on the evidence of record, no further complications have been observed. Moreover, with respect to his erectile dysfunction, the Veteran has already been awarded special monthly compensation for loss of use of a creative organ at the rate provided by 38 U.S.C. § 1114 (k). See 38 C.F.R. §§ 3.350(a)(1), 4.115b (Note 1). Erectile dysfunction is rated under Diagnostic Code 7522. To warrant a compensable rating of 20 percent for erectile dysfunction, the evidence must show deformity of the penis with loss of erectile power. 38 C.F.R. § § 4.115(b), Diagnostic Code 7522. The evidence indicates that the Veteran's penis is normal and without deformity. Accordingly, the Veteran does not meet the criteria for a separate 20 percent disability rating under Diagnostic Code 7522. 38 C.F.R. § 4.115b. The Board has considered whether staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007) are appropriate for the Veteran's diabetes mellitus; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In conclusion, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 20 percent for his diabetes mellitus, type II, with erectile dysfunction. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.