Citation Nr: 21074659
Decision Date: 12/16/21	Archive Date: 12/15/21

DOCKET NO. 19-29 001A
DATE: December 16, 2021

ORDER

Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected tinnitus is denied.

Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected diabetes mellitus type 2 is denied.

Effective January 25, 2021, entitlement to a 40 percent disability evaluation, but no higher, for the Veteran's service-connected left lower extremity sciatic nerve peripheral neuropathy is granted.

Effective January 25, 2021, entitlement to a 40 percent disability evaluation, but no higher, for the Veteran's service-connected right lower extremity sciatic nerve peripheral neuropathy is granted.

Effective January 25, 2021, entitlement to a 20 percent disability evaluation, but no higher, for the Veteran's service-connected left lower extremity femoral nerve peripheral neuropathy is granted.

Effective January 25, 2021, entitlement to a 20 percent disability evaluation, but no higher, for the Veteran's service-connected right lower extremity femoral nerve peripheral neuropathy is granted.

REMANDED

Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected left lower extremity sciatic nerve peripheral neuropathy prior to January 25, 2021, is remanded.

Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected right lower extremity sciatic nerve peripheral neuropathy prior to January 25, 2021, is remanded.

Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected left lower extremity femoral nerve peripheral neuropathy prior to January 25, 2021, is remanded.

Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected right lower extremity femoral nerve peripheral neuropathy prior to January 25, 2021, is remanded.

Entitlement to a compensable disability evaluation for the Veteran's service-connected bilateral hearing loss is remanded.

Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran has been in receipt of the maximum schedular rating for his service-connected tinnitus.

2. The evidence of record does not show that throughout the period on appeal, the Veteran has required one or more daily injection of insulin and restricted diet or oral hypoglycemic agent and restricted diet. 

3. Effective January 25, 2021, the record evidence shows that the Veteran's left lower extremity peripheral neuropathy is manifested by moderately severe incomplete paralysis of the sciatic nerve.

4. Effective January 25, 2021, the record evidence shows that the Veteran's right lower extremity peripheral neuropathy is manifested by moderately severe incomplete paralysis of the sciatic nerve.

5. Effective January 25, 2021, the record evidence shows that the Veteran's left lower extremity peripheral neuropathy is manifested by moderate incomplete paralysis of the femoral nerve.

6. Effective January 25, 2021, the record evidence shows that the Veteran's right lower extremity peripheral neuropathy is manifested by moderate incomplete paralysis of the femoral nerve.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6260.

2. The criteria for entitlement to a disability evaluation in excess of 10 percent for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.119, DC 7913.

3. Effective January 25, 2021, the criteria for entitlement to a disability evaluation of 40 percent, but no higher, for left lower extremity sciatic nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, DC 8520.

4. Effective January 25, 2021, the criteria for entitlement to a disability evaluation of 40 percent, but no higher, for right lower extremity sciatic nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, DC 8520.

5. Effective January 25, 2021, the criteria for entitlement to a 20 percent disability evaluation, but no higher, for left lower extremity femoral nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, DC 8526.

6. Effective January 25, 2021, the criteria for entitlement to a 20 percent disability evaluation, but no higher, for right lower extremity femoral nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, DC 8526.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1966 to April 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge (VLJ) via a virtual hearing in November 2021; a transcript is of record.

Increased Rating

Disability evaluations 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 by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such disease and injuries, and their residual conditions. Generally, the degrees of disability specified 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 (DCs) identify various disabilities and the criteria for separate ratings. If two disability evaluations are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

1. Tinnitus

The Veteran's tinnitus is rated under DC 6260, which permits the assignment of a single rating with a maximum of 10 percent, regardless of whether tinnitus is heard in one ear, in both ears, or in the head. 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006).

The Veteran's tinnitus has been assigned the maximum schedular rating throughout the claim period, and he does not assert, and the evidence does not show, that he is entitled to an extraschedular rating based on symptoms or impairment alleged to be related to his tinnitus. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, as there is no basis for a rating in excess of 10 percent, the Veteran's claim for an increased disability evaluation must be denied.

2. Diabetes Mellitus Type 2

The Veteran's diabetes mellitus type 2 is rated in accordance with DC 7913. This DC provides that when diabetes mellitus is manageable by restricted diet only, a 10 percent evaluation is warranted. 38 C.F.R. § 4.119, DC 7913. When diabetes mellitus requires insulin and restricted diet, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is warranted. Id. When, insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) are required, a 40 percent evaluation is warranted. Id. 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 compliances that would not be compensable if separately rated, is rated as 60 percent disabling. Id. 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 separation evaluation warrants a maximum 100 percent disability evaluation. Id. Note (1) following the rating criteria provides that compensable complications of diabetes mellitus are rated separately unless they are used to support a total disability rating. Id. at Note (1).

Here, the evidence does not show that the Veteran's diabetes mellitus warrants a rating higher than the 10 percent he is currently receiving. During a March 2017 examination, the Veteran was found to manage his diabetes mellitus by restricted diet and to not require the use of insulin or an oral hypoglycemic agent. The examiner found that the Veteran's condition does not require regulation of activities, that the Veteran hadn't experienced any hospitalizations for ketoacidosis or hypoglycemia in the previous 12 months, and that he would visit his diabetic care provider less than two times per month for episodes of ketoacidosis and/or hypoglycemia. The Veteran did not exhibit loss of strength and weight.

When the Veteran was again examined in May 2018, the examiner noted that this condition required oral hypoglycemic agents. However, the Veteran's CAPRI records do not indicate that he had been prescribed any medication or used any insulin to manage his diabetes mellitus. Furthermore, the examiner found that the Veteran showed no complications of diabetes mellitus, even though the Veteran was already noted to have lower extremity peripheral neuropathy due to his condition. Therefore, the Board finds that this examination was based upon an inaccurate factual premise and is therefore inadequate to determine the severity of the Veteran's condition. See Reonal v. Brown, 5 Vet. App. 458 (1993); Monzingo v. Shinseki, 26 Vet. App. 97 (2012).

The Veteran was most recently examined in January 2021, at which time he was found to be managing his diabetes mellitus with restricted diet. The January 2021 examiner noted that his condition did not require regulation of activities and that he visits his diabetic care provider less than two times per month for episodes of ketoacidosis and/or hypoglycemia. Furthermore, the Veteran had not had any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions over the previous 12 months.

Here, the Board finds that the Veteran's diabetes mellitus has not risen to the level of severity beyond a 10 percent rating. The Veteran's CAPRI records do not reflect him taking insulin for his condition or that he was prescribed oral hypoglycemic agents to manage his diabetes. Furthermore, during his November 2021 hearing, the Veteran stated that he controlled his diabetes mellitus with diet and exercise. See November 2021 Hearing Transcript. Though the Veteran stated that he was prescribed medication for his diabetes, the records indicate that the prescribed medicine is for his peripheral neuropathy and not a hypoglycemic agent. See id.; CAPRI Records received in October 2021. As the Veteran's diabetes mellitus has not risen to the levels of compensation greater than 10 percent, the Board must deny this claim.

3. Left Lower Extremity Sciatic Nerve Peripheral Neuropathy Effective January 25, 2021

4. Right Lower Extremity Sciatic Nerve Peripheral Neuropathy, Effective January 25, 2021

5. Left Lower Extremity Femoral Nerve Peripheral Neuropathy, Effective January 25, 2021

6. Right Lower Extremity Femoral Nerve Peripheral Neuropathy, Effective January 25, 2021

The Veteran's bilateral lower extremity sciatic nerve peripheral neuropathy is rated pursuant to DC 8520. Under this DC, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent evaluation requires complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520.

The Veteran's bilateral lower extremity femoral nerve peripheral neuropathy is rated pursuant to DC 8526. Under this DC, a 10 percent evaluation is warranted for mild incomplete paralysis of the femoral nerve; a 20 percent evaluation is warranted for moderate incomplete paralysis; and a 30 percent evaluation is warranted for severe incomplete paralysis. A maximum 40 percent evaluation is awarded for complete paralysis of the femoral nerve with paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526.

The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the 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, Note prefacing DCs 8510 through 8730.

The Veteran's bilateral lower extremity peripheral neuropathy was evaluated in January 2021, at which time the Veteran reported experiencing bilateral foot tingling, numbness, and burning. The examiner found that the Veteran showed symptoms of moderate paresthesias and/or dysesthesias and moderate numbness of the bilateral lower extremities. The Veteran's left ankle dorsiflexion strength was less than normal and left ankle showed decreased deep tendon reflexes. On examination, the Veteran's bilateral ankle/lower leg and foot/toes regions showed decreased light touch/monofilament sensation. The examiner also found that the Veteran's position sense was decreased in the bilateral lower extremities, vibration and cold sensations were also absent in his lower extremities. However, the Veteran did not exhibit any muscle atrophy. Nevertheless, his peripheral neuropathy noted trophic changes, specifically, loss of hair on the bilateral lower extremities.

After examining the Veteran, the examiner concluded that the Veteran's bilateral sciatic nerve peripheral neuropathy exhibited moderately severe incomplete paralysis and bilateral femoral nerve peripheral neuropathy exhibited moderate incomplete paralysis.

Resolving the benefit of the doubt in the Veteran's favor, the Board finds that a 40 percent evaluation, but no higher, is warranted for his bilateral lower extremity sciatic nerve neuropathy. The criteria have been met to warrant a 40 percent evaluation effective January 25, 2021, the date of examination in which the Veteran's condition first exhibited moderately severe incomplete paralysis. However, the criteria for a 60 percent evaluation have not been met, as the Veteran's peripheral neuropathy does not display severe incomplete paralysis of the sciatic nerve or marked muscular atrophy. Additionally, the maximum 80 percent evaluation under DC 8520 have not been met, as the Veteran did not show complete paralysis of the sciatic nerve.

Regarding the Veteran's bilateral femoral nerve peripheral neuropathy, the Board finds that a 20 percent evaluation, but no higher, is warranted effective January 25, 2021, the date of examination in which the Veteran's condition first exhibited moderate incomplete paralysis. However, the criteria for a 30 percent evaluation have not been met, as the Veteran's bilateral femoral nerve peripheral neuropathy has not shown severe incomplete paralysis. Further, the criteria for the maximum 40 percent evaluation under DC 8526 have not been met, as the Veteran did not exhibit complete paralysis of the femoral nerve and/or quadriceps extensor muscles.

To summarize, the Veteran's left lower extremity sciatic nerve peripheral neuropathy and right lower extremity sciatic nerve peripheral neuropathy are of a severity that warrants a 40 percent disability evaluation effective January 25, 2021. The Veteran's left lower extremity femoral nerve peripheral neuropathy and right lower extremity femoral nerve peripheral neuropathy are of a severity that warrants a 20 percent disability evaluation effective January 25, 2021.

REASONS FOR REMAND

1. Left Lower Extremity Sciatic Nerve Peripheral Neuropathy Prior to January 25, 2021

2. Right Lower Extremity Sciatic Nerve Peripheral Neuropathy Prior to January 25, 2021

3. Left Lower Extremity Femoral Nerve Peripheral Neuropathy Prior to January 25, 2021

4. Right Lower Extremity Femoral Nerve Peripheral Neuropathy Prior to January 25, 2021

In September 2017, the Veteran's bilateral lower extremity peripheral neuropathies were examined. The examiner noted that the Veteran showed severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in his bilateral lower extremities. Although the Veteran's strength and deep tendon reflexes were noted to be normal, light touch/monofilament testing resulted in decreased sensation in the bilateral ankle/lower leg and foot/toes regions. Moreover, the examiner found that the Veteran had trophic changes characterized by loss of extremity hair and smooth, shiny skin.

Nevertheless, the examiner concluded that the Veteran's bilateral sciatic nerve peripheral neuropathy showed moderate incomplete paralysis and did not opine as to the severity of the Veteran's bilateral femoral nerve peripheral neuropathy. These internal inconsistencies unfortunately render the Board incapable of making an informed decision in this case to determine the nature and severity of the Veteran's bilateral lower extremity peripheral neuropathy prior to the January 25, 2021 examination (discussed above). See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Therefore, the Board requests, on remand, a retrospective opinion determining the nature and severity of the Veteran's left lower extremity sciatic nerve peripheral neuropathy, right lower extremity sciatic nerve peripheral neuropathy, and left lower extremity femoral nerve peripheral neuropathy, from July 29, 2015, to January 24, 2021, and right lower extremity femoral nerve peripheral neuropathy, from July 29, 2016, to January 24, 2021. Chotta v. Peake, 22 Vet. App. 80 (2008).

5. Bilateral Hearing Loss

The Veteran was last examined for his service-connected bilateral hearing loss in March 2017. Since that time, the Veteran has asserted that his hearing has worsened. Specifically, the Veteran stated during his November 2021 hearing that he would have to concentrate in the store when there are a lot of people around and that he would "get mixed up when people talk." See November 2021 Hearing Transcript.

As it has been approximately four years since the Veteran's latest examination and the Veteran asserts that his condition has increased in severity since said examination, the Board finds that a contemporaneous examination is warranted to ascertain the current nature and severity of his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).

6. TDIU

The Veteran, through his representative, has asserted numerous times that he is entitled to a TDIU. See March 2018 Notice of Disagreement; October 2019 VA Form 9; November 2021 Hearing Transcript. Also, the Veteran's examinations affiliated with the claims file indicate that his service-connected bilateral lower extremity sciatic nerve and bilateral lower extremity femoral nerve peripheral neuropathy, in addition to his service-connected bilateral hearing loss adversely affect his ability to work. See March 2017 VA Diabetic Sensory-Motor Peripheral Neuropathy Examination; March 2017 VA Hearing Loss and Tinnitus Examination; September 2017 VA Diabetic Sensory-Motor Peripheral Neuropathy Examination; January 2021 VA Diabetic Sensory-Motor Peripheral Neuropathy Examination (received in March 2021).

Thus, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. §§ 3.340, 4.16. The issue of TDIU is part and parcel of the increased rating claims, and therefore is before the Board via the appeal of those issues. Rice, 22 Vet. App. at 453.

Since the adjudication of the claims for increased disability evaluations on remand could significantly impact adjudication of TDIU, the Board finds that these issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The Board also acknowledges that the Veteran is currently in receipt of a combined 100 percent disability evaluation. A TDIU claim can be granted despite the existence of a combined schedular total rating for the purpose of establishing entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114(s). In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to a TDIU may not be moot based on the assignment of total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes a separate award of a TDIU predicated on a single disability may form the basis of an award of SMC.

The Board notes that, in accordance with an October 2021 rating decision, the Veteran has been in receipt of an SMC pursuant to 38 U.S.C. § 1114(s). However, the October 2021 rating decision proposed to discontinue the Veteran's entitlement to SMC. Therefore, this matter must be remanded for readjudication.

The matters are REMANDED for the following action:

1. Forward the claims file to an appropriate clinician to determine the nature and severity of the Veteran's left lower extremity sciatic nerve peripheral neuropathy, right lower extremity sciatic nerve peripheral neuropathy, and left lower extremity femoral nerve peripheral neuropathy, from July 29, 2015, to January 24, 2021 and the nature and severity of the Veteran's right lower extremity femoral nerve peripheral neuropathy from July 29, 2016, to January 24, 2021.

Based on review of the claims file, the clinician should render an opinion addressing whether, at any point from July 29, 2015, to January 24, 2021, the record reflects any change(s) in the severity of the Veteran's left lower extremity sciatic nerve peripheral neuropathy, right lower extremity sciatic nerve peripheral neuropathy, and/or left lower extremity femoral nerve peripheral neuropathy, and, if so, the approximate date(s) of any such change(s).

Based on review of the claims file, the clinician should render an opinion addressing whether, at any point from July 29, 2016, to January 24, 2021, the record reflects any change(s) in the severity of the Veteran's right lower extremity femoral nerve peripheral neuropathy, and, if so, the approximate date(s) of any such change(s).

The clinician should also attempt to reconcile any and all internal inconsistencies in the September 2017 examination report.

2. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and severity of the Veteran's bilateral hearing loss. All indicated tests and studies should be performed, including audiometric testing and speech recognition testing (using the Maryland CNC Test), and all clinical findings should be set forth in detail.

The examiner should comment upon the effect of hearing loss on the Veteran's occupational functioning and daily activities.

3. Readjudicate the following issues:

(a) entitlement to a disability evaluation in excess of 10 percent for service-connected left lower extremity sciatic nerve peripheral neuropathy prior to January 25, 2021;

(b) entitlement to a disability evaluation in excess of 10 percent for service-connected right lower extremity sciatic nerve peripheral neuropathy prior to January 25, 2021;

(c) entitlement to a disability evaluation in excess of 10 percent for service-connected left lower extremity femoral nerve peripheral neuropathy prior to January 25, 2021;

(d) entitlement to a disability evaluation in excess of 10 percent for service-connected right lower extremity femoral nerve peripheral neuropathy prior to January 25, 2021;

(e) entitlement to a compensable disability evaluation for service-connected bilateral hearing loss; and

(f) entitlement to a TDIU.

4. If any of the above-sought benefits are denied, the RO should issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative. An appropriate period of time should be allowed for response before returning the appeal to the Board.  

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoffman

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.