Citation Nr: 21005665 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-44 181 DATE: February 2, 2021 ORDER A rating in excess of 20 percent for diabetes mellitus, type II, is denied. As of September 24, 2020, but no earlier, a separate rating of 10 percent, but no higher, for diabetic peripheral neuropathy of the right lower extremity is granted, subject to the law and regulations governing payment of monetary benefits. As of September 24, 2020, but no earlier, a separate rating of 10 percent, but no higher, for diabetic peripheral neuropathy of the left lower extremity is granted, subject to the law and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s diabetes mellitus, type II, required oral hypoglycemic agents, insulin, and a restricted diet, but did not necessitate regulation of activities or result in separately compensable complications other than diabetic peripheral neuropathy of the bilateral lower extremities as of September 24, 2020. 2. As of September 24, 2020, the Veteran’s service-connected diabetes mellitus, type II, resulted in peripheral neuropathy of the bilateral lower extremities, which resulted in no more than mild incomplete paralysis of the sciatic nerves. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. As of September 24, 2020, but no earlier, the criteria for a separate rating of 10 percent, but no higher, for diabetic peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520. 3. As of September 24, 2020, but no earlier, the criteria for a separate rating of 10 percent, but no higher, for diabetic peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. With respect to the Veteran’s increased rating claim for his service-connected diabetes mellitus, type II, the appeal period before the Board stems from his November 27, 2012, claim, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, the Veteran’s diabetes mellitus, type II, has been rated as 20 percent disabling under the criteria of DC 7913. DC 7913 provides that a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for 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. A 100 percent rating is warranted for 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. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). Note (1) provides that complications of diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under DC 7913. “Regulation of activities” is defined under DC 7913 as the “avoidance of strenuous occupational and recreational activities.” Id. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Due to the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each criterion listed in a rating must be met or more closely approximated in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. After a review of the record, the Board finds that a rating in excess of 20 percent for the Veteran’s service-connected diabetes mellitus, type II, is not warranted. In this regard, VA treatment records reflect that he was prescribed Metformin, Linagliptin, Actos, and Glyburide, and began taking insulin in December 2011. The Veteran reported diabetic retinopathy in July 2012, and it was noted that he had early cataracts and perhaps macular degeneration; however, a diabetic eye examination was not performed. Nonetheless, March 2010 and April 2013 private eye examinations revealed that diabetic retinopathy was not present. An August 2013 VA treatment record reflects that the Veteran’s diabetes was well-controlled; and he had no episodes of hypoglycemia or hyperglycemia. In May 2016 and December 2018, there were no reports of hypoglycemia/hypoglycemic events. The Veteran’s diabetes was noted to be controlled in September 2019. A September 2020 VA treatment reveals a notation of neuropathy of the feet (burning/tingling/ numbness). However, there is no indication that the Veteran’s treatment providers prescribed regulation of activities. At a January 2013 VA examination, the examiner found that the Veteran’s diabetes mellitus, type II, was treated by oral hypoglycemic agents and daily insulin injections, and managed by a restricted diet; however, he did not require regulation of activities. Additionally, the examiner indicated that the Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. Here, he noted that such episodes did not require any hospitalizations in the previous year. The examiner further indicated that the Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus, type II. Moreover, the examiner found that the Veteran did not have any of complications of diabetes mellitus, to specifically include diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction caused by diabetes mellitus, or diabetic retinopathy. The Veteran underwent an additional VA examination in April 2019, at which time the examiner observed that the Veteran’s diabetes mellitus, type II, was treated by oral hypoglycemic agents and daily insulin injections, and managed by a restricted diet. She did not indicate whether regulation of activities was required. The examiner also reported that the Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. Here, she noted that such episodes did not require any hospitalizations in the previous year. The examiner further indicated that the Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus, type II. Further, the examiner found that the Veteran had diabetic nephropathy/renal dysfunction caused by his diabetes. She further found that the Veteran had hypertension (in the presence of diabetic renal disease) that was at least as likely as not due to diabetes; and the Veteran’s hypertension and renal disease was at least as likely as not permanently aggravated by his diabetes. Thus, in light of such findings, the Veteran underwent a contemporaneous VA examination to determine the nature and severity of his diabetic nephropathy. At such time, the examiner noted that the Veteran had increasingly abnormal urine protein/microalbuminuria. Additionally, the examiner reported that the Veteran’s kidney disorder did not require continuous medication; rather, he had renal dysfunction manifested by persistent proteinuria. She further found that the Veteran did not have hypertension due to renal dysfunction/caused by any kidney disorder; recurrent symptomatic urinary tract or kidney infections; a kidney transplant or removal; benign or malignant neoplasm or metastases; or any other pertinent physical findings, complications, conditions, or signs or symptoms related to his diabetic nephropathy. Laboratory tests results demonstrated that the Veteran’s BUN and eGFR were normal; and hyaline casts, granular casts, RBC’s/HPF, proteinuria, and albumin and casts with history of acute nephritis were also normal. The Veteran also underwent a contemporaneous VA examination to determine the nature and severity of his hypertension. At such time, the examiner noted that the Veteran’s treatment plan included taking continuous medication (Lisinopril) for his hypertension. She further noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The Veteran’s current blood pressure readings were 108/56, 156/80, and 138/84. In a September 2019 addendum opinion, the April 2019 VA examiner indicated that, with respect to the Veteran’s hypertension, it was clear that such preceded his diabetes. Here, she noted that, given the onset of the Veteran’s hypertension before his diabetes, it would be difficult to establish an excess that it was less than likely as not that his hypertension was caused by his diabetes, and her previous report was in error in such aspect. She further noted, however, that both hypertension and diabetes may have some underlying causes in common and also contribute to a worsening of each other’s symptoms. With respect to the Veteran’s diabetic nephropathy, the examiner indicated that, in converting his microalbumin values from milligrams to ug: (1) in August 2013, he had a microalbumin of 7.5 mg, which is 75 ug and meets the criteria of microalbuminuria (early stage of diabetic nephropathy); (2) in April 2015, he had a microalbumin of 4.8 mg, which is 48 ug and meets the criteria; and (3) in May 2019, he had a microalbumin of 5.2 mg, which is 52 ug and meets the criteria. Finally, with respect to the Veteran’s diabetes, she reported that such disorder required regulation of activities as the Veteran had retired due to persistent ill health at 56 years old; that he no longer went fishing because of his fatigability; that he had to hire a landscaper to do his usual yardwork; and that he used to travel with his wife, but no longer did so due to his ill health. However, as the April 2019 VA examiner did not address the proper standard regarding regulation of activities, the Veteran was afforded an additional VA examination in September 2020. At such time, the examiner found that the Veteran’s diabetes mellitus, type II, was treated by oral hypoglycemic agents and daily insulin injections; however he did not have a restricted diet and did not require regulation of activities. Additionally, the examiner reported that the Veteran visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. Here, she noted that such episodes did not require any hospitalizations in the previous year. The examiner further indicated that the Veteran did not have progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus, type II. She also found that the Veteran had diabetic peripheral neuropathy as a complication of his diabetes, but no other complications, to include diabetic nephropathy or diabetic retinopathy, were noted. Thus, in light of such findings, the Veteran underwent a contemporaneous VA examination to determine the nature and severity of his diabetic neuropathy. At such time, the examiner indicated that the Veteran had mild intermittent pain, and moderate paresthesias and/or dysesthesias, in the bilateral lower extremities. The Veteran’s muscle strength, deep tendon reflexes, light touch/monofilament testing, position sense, vibration and cold sensation were all normal. He did not have muscle atrophy or trophic changes. Thus, the examiner found that the Veteran had mild incomplete paralysis of the bilateral sciatic nerves. Based on the foregoing, the Board finds that a rating in excess of 20 percent for the Veteran’s diabetes mellitus, type II, is not warranted. Specifically, while the evidence of record reveals that such disability is treated with oral hypoglycemic agents, insulin, and a restricted diet, there is no indication that such requires regulation of activities as contemplated by VA regulations. In this regard, the Board acknowledges that, in September 2019, the April 2019 VA examiner indicated that the Veteran’s diabetes required regulation of activities. Here, the Board notes that “regulation of activities” is defined under DC 7913 as the “avoidance of strenuous occupational and recreational activities.” However, the Board finds that such examiner’s assessment is not sufficient to establish regulation of activities as defined by the DC. Further, according to Camacho, a medical provider must indicate that the claimant’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” See Camacho, supra, at 363-64. Specifically, the examples of “regulation of activities” that the April2019 VA examiner provided included the Veteran’s own decision to retire, and stop fishing, doing yard work, and traveling with his wife due to “ill health,” is not what is contemplated by the rating schedule. There is no indication, to include in the Veteran’s VA treatment records and the remaining VA examination reports (dated in January 2013 and September 2020), that regulation of activities was prescribed by his physicians or otherwise medically required for the management of his diabetes. Thus, the Board finds that the medical evidence of record does not establish regulation of activities is required. Consequently, as such is a required manifestation for a 40, 60, or 100 percent rating and the Veteran is not shown to meet such criteria, a rating in excess of 20 percent is not warranted under DC 7913. Pursuant to Note (1) of DC 7913, the Board has considered whether the Veteran has separately compensable complications of his diabetes mellitus, type II. In this regard, he has a diagnosis of diabetic nephropathy, which is evaluated pursuant to DC 7541, which in turn provides that such is rated based on renal dysfunction. Here, the Board finds a separate compensable rating for such disability is not warranted. In this regard, to establish the minimum compensable rating of 30 percent under such rating criteria, there must be albumin constant or recurring with hyaline and granular cases or red blood cells;; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101. In this regard, DC 7101 provides a 10 percent rating for hypertension with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. In this regard, VA treatment records show no objective evidence of edema and, although the April 2019/September 2019 VA examiner observed persistent microalbumin, there was no evidence that there was hyaline and granular casts or red blood cells; or transient or slight edema on examination. Furthermore, while the April 2019 VA examination report shows that the Veteran’s diagnosed hypertension requires continuous medication for control, she specifically found that he does not have a history of diastolic blood pressure predominantly 100. Further, the Veteran’s hypertension is not shown to result in systolic blood pressure predominantly 160 or more, as evidenced by blood pressure readings provided at the April 2019 VA examination and his VA treatment records. Thus, the Board finds that a separate compensable rating for diabetic nephropathy or hypertension is not warranted pursuant to DC 7541 or DC 7101. Consequently, such diabetic complications are considered part of the diabetic process and are rated with the Veteran’s diabetes under DC 7913. However, for the reasons discussed below, the Board finds that separate compensable ratings are warranted for diabetic peripheral neuropathy of the right and left lower extremities. In this regard, as noted by the September 2020 VA examiner, such neuropathy affects the Veteran’s sciatic nerve. DC 8520 address the sciatic nerve, which provides for a 10 percent rating where there is mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is for application where there is moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis. An 80 percent rating is assigned where there is complete paralysis of the sciatic nerve, characterized as dangle and drop of the foot, with no active movement of the muscles below the knee possible, and weakened or (very rarely) lost flexion of knee. 38 C.F.R. § 4.124a, DC 8520. The words “moderate” and “severe” are not defined in 38 C.F.R. §§ 4.120-4.124a. In applying the schedular criteria for rating peripheral nerve disabilities, the term “incomplete paralysis” 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 partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Based on the foregoing, the Board finds that a separate 10 percent rating, but no higher, for diabetic peripheral neuropathy of the right and left lower extremities is warranted under D 8520 as of September 24, 2020, the date of the VA examination when such manifestations were first factually ascertainable, but no earlier. In this regard, the January 2013 and April 2019 VA examiners did not find any evidence of sensory or other neurological impairment to the Veteran’s bilateral lower extremities. On VA examination in September 2020, only subjective complaints of mild intermittent pain, and moderate paresthesias and/or dysesthesias, in the bilateral lower extremities were noted as the Veteran’s muscle strength, deep tendon reflexes, light touch/monofilament testing, position sense, vibration and cold sensation were all normal upon clinical evaluation. He also did not have muscle atrophy or trophic changes. Moreover, based on the foregoing subjective reports and objective findings, the examiner found that the Veteran’s bilateral lower extremity diabetic neuropathy resulted in no more than mild incomplete paralysis of the sciatic nerves. Thus, a rating in excess of 10 percent for such disabilities as of September 24, 2020, is not warranted. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that his diabetes is more severe than as reflected by the current assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected diabetes; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor, which has resulted in a partial award of separate ratings for his diabetic peripheral neuropathy of the bilateral lower extremities as of September 24, 2020. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the Veteran’s claims. Therefore, the benefit of the doubt doctrine is not applicable and such initial rating claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, Associate 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.