Citation Nr: 21076020 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-19 981 DATE: December 22, 2021 ORDER The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type II with erectile dysfunction, is denied. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy of the right upper extremity is denied. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy of the left upper extremity is denied. REMANDED The appeal as to the claim of entitlement to service connection for a right knee disorder is remanded. The appeal as to the claim of entitlement to service connection for a left knee disorder is remanded. The appeal as to the claim of entitlement to service connection for a cervical spine disorder is remanded. The appeal as to the claim of entitlement to service connection for a lumbar spine disorder is remanded. The appeal as to the claim of entitlement to a total disability rating based upon individual unemployability (TDIU), due to service-connected disabilities, is remanded. The appeal as to the claim of entitlement to service connection for special monthly compensation (SMC) based on a need for regular aid and attendance is remanded. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran's diabetes mellitus type II disability with erectile dysfunction required insulin, an oral hypoglycemic agent, and a restricted diet; there was no evidence of regulation of activities. 2. Throughout the pendency of this claim, the Veteran's peripheral neuropathy of the right upper extremity was manifested by no more than mild incomplete paralysis of the median nerve. 3. Throughout the pendency of this claim, the Veteran's peripheral neuropathy of the left upper extremity was manifested by no more than mild incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction 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). 2. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515 (2020). 3. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1968 to July 1971, including service in the Republic of Vietnam. His service was under honorable conditions. The Board recognizes that, among other commendations, the Vietnam Service Medal and the Vietnam Campaign Medal were awarded. The Veteran passed away in December 2014. His surviving spouse is the appellant. The matters are on appeal from September 2013 and October 2013 rating decisions. During a March 2013 VA examination, the Veteran raised an informal claim of entitlement to a TDIU due to his service-connected disabilities. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. In December 2017, the appellant and the Veteran's son testified at a videoconference hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of this hearing has been prepared and associated with the evidence of record. In an April 2018 decision, the Board in pertinent part, denied the claim of entitlement to service connection for right knee, left knee, cervical spine, and lumbar spine disabilities, and entitlement to increased initial ratings in excess of 20 percent for service-connected diabetes mellitus type II, in excess of 10 percent for service-connected peripheral neuropathy of the right upper extremity, and in excess of 10 percent for service-connected peripheral neuropathy of the left upper extremity. The appellant appealed the Board's April 2018 decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in June 2018, the appellant's representative and a representative of VA's General Counsel filed a joint motion for partial remand. In June 2018, the Court granted the parties' motion, vacated the Board's April 2018 decision denying entitlement to service connection for right knee, left knee, cervical spine, and lumbar spine disabilities, and increased initial ratings in excess of excess of 20 percent for service-connected diabetes mellitus type II, in excess of 10 percent for service-connected peripheral neuropathy of the right upper extremity, and in excess of 10 percent for service-connected peripheral neuropathy of the left upper extremity, and remanded the matters for action consistent with the terms of the joint motion, The matter was previously before the Board in January 2020. The claim has been returned to the Board for further appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Legal Criteria Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). 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 (2020). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2020) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and subsequent increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify regarding the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus type II with erectile dysfunction. The Veteran's service-connected diabetes mellitus type II disability is currently rated as 20 percent disabling pursuant to Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent rating. Id. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent rating. 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 complications that would not be compensable if separately evaluated warrants a 60 percent rating. 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 separately evaluated warrants a 100 rating. Id. The Court has defined the "regulation of activities" as the "avoidance of strenuous occupational and recreational activities," and concluded that medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). Compensable complications of diabetes mellitus are rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2020). Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The Board notes that the rating criteria for Diagnostic Code 7913 are successive. In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating. Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the schedular level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive "and' in a statutory provision means that all of the listed conditions must be met). A September 2012 private treatment record notes the Veteran's increased blood sugar levels despite taking oral insulin. The physician notes symptoms of numbness and tingling of the upper extremities. The assessment was poorly controlled diabetes mellitus; oral medication was discontinued, and intensive insulin therapy was ordered. The Veteran underwent a VA examination in April 2013. The examiner noted that the Veteran's diabetes mellitus was managed by a restricted diet, oral hypoglycemic, and more than one insulin injection per day. The Veteran did not require regulation of activities. He visited his diabetic care provider less than two times per month for ketoacidosis or hypoglycemic reactions. There was no evidence of hospitalization for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months. There was no evidence of hypoglycemia requiring hospitalization over the past 12 months. The Veteran did not demonstrate progressive unintentional weight loss or progressive loss of strength attributed to diabetes mellitus. Complications of diabetes mellitus include diabetic peripheral neuropathy and erectile dysfunction. A June 2013 Social Security Administration (SSA) record indicates a finding of uncontrolled diabetes mellitus. A September 2013 VA outpatient treatment record demonstrates the Veteran was prescribed insulin several times a day and oral medication (Metformin) once a day for diabetes mellitus. A January 2014 VA outpatient treatment record shows the Veteran was prescribed insulin several times a day and oral medication twice a day for diabetes mellitus. The Veteran's A1C was 8 percent. A subsequent January 2014 VA record shows complications of the Veteran's diabetes mellitus include peripheral neuropathy of the bilateral upper and lower extremities. VA outpatient treatment records dated in September 2014 through January 2015 demonstrate ongoing use of insulin several times a day and oral medication twice a day for diabetes mellitus. Complications of diabetes include peripheral neuropathy of the bilateral upper and lower extremities and erectile dysfunction. Upon consideration of the evidence of record, the Board finds that a disability rating in excess of 20 percent is not warranted for the Veteran's service-connected diabetes mellitus type II disability. Throughout the appeal period, the record demonstrates that the Veteran's diabetes mellitus type II requires insulin, an oral hypoglycemic agent, and a restricted diet; however, there is no evidence of regulation of his activities. The Veteran was not hospitalized for ketoacidosis or hypoglycemia during the year prior to the aforementioned VA examinations or subsequent outpatient treatment. He visited his diabetic care provider less than twice per month for episodes of ketoacidosis or hypoglycemia. There was no evidence of progressive unintentional weight loss or strength loss attributable to his diabetes. The Board recognizes that the appellant believes that the Veteran is entitled to an evaluation in excess of 20 percent for his service-connected diabetes mellitus. However, the rating criteria require that regulation of activities is necessary to manage diabetes mellitus. The record contains no evidence to suggest that this is the case. To the contrary, during almost every primary care visit, the Veteran was encouraged to exercise. Moreover, the regulation of activities criterion refers to regulation of activities medically necessary to control the Veteran's diabetes, rather than to regulation of activities for another purpose. Here, the Board notes that the Veteran had functional and occupational limitations due to his many service-connected and non-service connected disabilities; however, treatment records show that physical activity was generally advised or encouraged, and they do not otherwise show that regulation of activity was necessary to control the Veteran's diabetes. As such, the appellant's and Veteran's assertions fail to demonstrate that a higher schedular evaluation is warranted. In the absence of medical evidence showing that the Veteran has been required to regulate his activities, as defined by Camacho, an initial rating in excess of 20 percent is not warranted for his service-connected diabetes mellitus type II disability. As above, pursuant to Note 1 under Diagnostic Code 7913, the Board must assign separate ratings for any compensable complications of the Veteran's service-connected diabetes mellitus, type II. All noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119; Diagnostic Code 7913, Note (1). Here, the Board notes that erectile dysfunction is noncompensable and considered part of the diabetic process. Additional complications include bilateral upper and lower diabetic peripheral neuropathy, which are rated separately. In this regard, bilateral upper extremity diabetic peripheral neuropathy is currently on appeal, and will be addressed below. Based on the foregoing, the Veteran has not been shown to meet the criteria for an increased evaluation under the rating criteria. Although the Veteran has been shown to require oral hypoglycemic agents, insulin, and a restricted diet, he does not require a regulation of activities, which is a necessary component for a higher evaluation. Nor does the evidence support any additional, separate compensable evaluations for complications of the service-connected diabetes mellitus. Accordingly, the Veteran is not entitled to an initial evaluation in excess of 20 percent for his diabetes mellitus. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy of the right upper extremity. See argument Below at 3 3. Entitlement to an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy of the left upper extremity. As noted above, the Veteran is in receipt of separate right and left upper extremity initial 10 percent ratings for peripheral neuropathy of the median nerve pursuant to § 4.124a, Diagnostic Code 8515. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8615 and 8715.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 50 percent disabling. Complete paralysis, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to the palm; flexion of wrist weakened; pain with trophic disturbances, is rated as 70 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 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). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with median nerve involvement, for severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. In this case, the evidence of record does not establish the Veteran's symptoms in his hands of either arm are manifested by more than a mild degree of impairment. The report of a February 2013 VA EMG study of the upper extremities revealed abnormal right and left upper extremities. At the time of the April 2013 VA examination for diabetic peripheral neuropathy, the Veteran reported symptoms of mild numbness and tingling, mild paresthesias, and moderate intermittent pain, of his right and left upper extremities. On neurological examination, light touch testing was decreased for the right and left hand/fingers, respectively. The examination confirmed there were no other impairments of the right or left upper extremity. Strength testing was normal. There was no evidence of muscle atrophy. Motor function was normal. The examiner found that the Veteran had mild incomplete paralysis of the median nerve of each hand manifest by mild numbness and tingling. At the time of the April 2014 VA examination for diabetic peripheral neuropathy, the Veteran reported symptoms of mild numbness of his right and left upper extremities. On neurological examination, light touch testing was decreased for the right and left hand/fingers, respectively. Strength testing was normal. There was no evidence of muscle atrophy. Motor function was normal. The examiner found that the Veteran had mild incomplete paralysis of the median nerve of each hand manifest by mild numbness and tingling. The clinical records throughout the course of this longstanding appeal include no findings which would support a higher rating for the hands or fingers of arm. Based on the above, the Board finds that the disabilities as to the fingers/hands on each arm are primarily manifested by sensory symptoms such as tingling and numbness, but without impairment of motor functions, trophic changes, loss of reflexes, pain, muscle atrophy, or complete paralysis. The Board finds that the level of impairment is most analogous to mild incomplete paralysis for symptoms of the fingers/hands in each arm. 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. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claims for initial ratings in excess of 10 percent for the peripheral neuropathy in the fingers/hands of the right and left arm. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the appellant's claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder. See argument Below at 4 2. Entitlement to service connection for a left knee disorder. See argument Below at 4 3. Entitlement to service connection for a cervical spine disorder. See argument Below at 4 4. Entitlement to service connection for a lumbar spine disorder. When the Board last reviewed the claim in January 2020 it noted that with respect to the appellant's claim, VA has a duty to assist her by obtaining VA, Social Security Administration (SSA) records, and/or private outpatient treatment records identified by the appellant and/or the Veteran before he passed away. The record shows that in his October 2012 claim, the Veteran asserted that he was treated during active service for his right knee disability in approximately August 1969 through October 1969, at Cam Ranh Bay Hospital, located in the Republic of Vietnam. Likewise, in January 2014, the record demonstrates that the Veteran asserted that he was in receipt of SSA disability benefits. In addition, although the record contains private treatment records from Dr. M. and Dr. B. dated January 1998, to September 2012, the Veteran asserted that he was treated by these physicians in 1982. Thus, the claim was remanded for the aforementioned development. The Veteran's SSA records were obtained and associated with the record in October 2020. However, in a March 2021 deferred rating decision, the AOJ indicated that although an inquiry was submitted on January 12, 2021, requesting active duty inpatient clinical records for a right knee injury from August 1968 through October 1969 from Cam Ranh Bay Hospital, the February 2, 2021 response only included the Veteran's service personnel records. In this regard, the AOJ noted that the Veteran was treated for a head injury at Cam Ranh Bay Hospital, as those records were received in March 2019. The AOJ concluded that clinical records from Cam Ranh Bay Hospital clearly exist; thus, further development is necessary for additional inpatient clinical records from such facility dated in 1969. In addition, the AOJ further noted that it must attempt to obtain private treatment records from Dr. M. and Dr. B. dated in 1982 through January 1998, as the Veteran asserted that he was treated by these physicians in 1982. 38 U.S.C. § 3.159 (2020). Accordingly, on remand, the aforementioned records must be obtained and associated with the record. Id. 5. Entitlement to TDIU due to service-connected disabilities. As the appellant's claim for entitlement to service connection for right knee, left knee, cervical spine, and lumbar spine disabilities, and are being remanded for additional development by the AOJ, they are directly applicable to the question of employability, the issue of TDIU is also remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). 6. Entitlement to SMC based on a need for regular aid and attendance. Finally, since the Veteran's claim for SMC based on a need for aid and attendance, relies in part on her disability ratings, this issue cannot be addressed until the above development has been completed. See Id. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the appellant's claim, to include records from Cam Ranh Bay Hospital dated in August 1969 through October 1969, and complete private treatment records from Dr. M. and Dr. B. dated from 1982, through January 1998. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. CONTINUED ON NEXT PAGE 2. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.