Citation Nr: 21006487 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-37 336 DATE: February 4, 2021 ORDER A rating in excess of 20 percent for diabetes mellitus, type II (DMII) is denied. An initial 10 percent rating from September 22, 2017, to December 28, 2019, for right lower extremity femoral nerve diabetic peripheral neuropathy is granted, subject to regulations governing the payment of monetary awards. An initial 10 percent rating from September 22, 2017, to December 28, 2019, for left lower extremity femoral nerve diabetic peripheral neuropathy is granted, subject to regulations governing the payment of monetary awards. An initial rating in excess of 10 percent from December 28, 2019, for right lower extremity femoral nerve diabetic peripheral neuropathy is denied. An initial rating in excess of 10 percent from December 28, 2019, for left lower extremity femoral nerve diabetic peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran’s DMII requires the use of oral medication, a restricted diet, and insulin injections more than once a day; regulation of activities has not been shown. 2. From September 22, 2017, the Veteran’s right lower extremity femoral nerve diabetic peripheral neuropathy has been manifested by mild incomplete paralysis; moderate incomplete paralysis or more has not been shown. 3. From September 22, 2017, the Veteran’s left lower extremity femoral nerve diabetic peripheral neuropathy has been manifested by mild incomplete paralysis; moderate incomplete paralysis or more has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for DMII have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.119; Diagnostic Code (DC) 7913. 2. The criteria for an initial rating of 10 percent, but no higher, from September 22, 2017, for right extremity femoral nerve diabetic peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 3. The criteria for an initial rating of 10 percent, but no higher, from September 22, 2017, for left extremity femoral nerve diabetic peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 Department of Veterans’ Affairs (VA) Regional Office (RO) rating decision that continued a 20 percent disability evaluation for the Veteran’s DMII. In March 2019, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In November 2019, the Board remanded the claim for additional development. As a result of the additional development completed, in an August 2020 rating decision, the RO granted separate ratings for right and left lower extremity femoral nerve diabetic peripheral neuropathy, rated 10 percent, effective December 28, 2019, as ancillary to the DMII increased rating claim. As the rating decision indicated these issues were inextricably intertwined with the claim seeking an increased rating for DMII, with no further action required on the Veteran’s part, the Board finds that it also has jurisdiction over the issues of entitlement to initial ratings in excess of 10 percent right and left lower extremity femoral nerve diabetic peripheral neuropathy AB v. Brown, 6 Vet. App. 35, 39 (1993). Accordingly, they have been added to the issues on appeal as reflected above. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). Under Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet is assigned a 20 percent disability rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating. 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, is assigned a 60 percent disability rating. 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 evaluated, is assigned a 100 percent disability rating. 38 C.F.R. § 4.119, DC 7913. The Board notes that the term “regulation of activities” is defined in the rating criteria for a 100 percent disability rating under DC 7913 as “avoidance of strenuous occupational and recreational activities.” Id. Although not specified in the rating criteria, the Board finds that this definition also applies to the “regulation of activities” discussed in the 40 percent and 60 percent disability ratings under DC 7913. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). Because of 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 of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. 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. Id. Entitlement to a rating in excess of 20 percent for DMII. The Veteran is seeking an increased disability rating for DMII which is rated at 20 percent disabling under DC 7913. See 38 C.F.R. § 4.119. See May 2014 Notice of Disagreement; March 2019 Hearing Transcript. The Board notes incidentally that the Veteran is also service-connected for diabetic peripheral neuropathy of the right and left lower extremities, sciatic nerve radiculopathy of the right and left lower extremities, and diabetic bilateral retinopathy; he is assigned separate ratings for these disabilities. See also 38 C.F.R. § 4.119, DC 7913, Note 1. Private treatment records from the Veteran’s treating primary care physician, Dr. M.O.K. in April 2013 through July 2013 do not mention a regulation or restriction of activities. However, in a letter dated in October 2013, Dr. M.O.K. noted the Veteran’s DMII was now insulin-required, and that he should start a diabetic diet, routine exercise, and other regulation of activities. On December 2013 VA examination, the examiner confirmed the Veteran’s DMII diagnosis. The Veteran’s DMII was noted as being treated by insulin once per day. There was no indication that regulation of activities was needed as part of medical management for the disabilities reported, and the Veteran was also noted to have requested a visit to his diabetic provider less than 2 times per month for episodes of ketoacidosis or hypoglycemic reactions, and had hospitalizations for episodes of ketoacidosis or hypoglycemic reactions in the past year were documented. Erectile dysfunction was documented as a complication of his DMII. The Veteran reported experiencing fatigue and general loss of energy, however, DMII and related complications were found to not have a functional impact on his ability to work. In an April 2014 letter, Dr. M.O.K. repeated his October 2013 recommendation of a restricted diet and regulation of activities. VA treatment records from March 2015 to January 2020 show that the Veteran continued to receive treatment for his DMII symptoms. VA treatment records from that period also show that the Veteran was encouraged to follow his diet, which he readily admitted to not following, and was counseled on the importance of regular exercise and/or physical activity, which he also admitted to not doing. See VA treatment records uploaded June 2016 and August 2020. At the March 2019 Board hearing, the Veteran testified that his DMII had not been under control and he believed he was told in 2006 to regulate his activities. However, he also mentioned that his doctor told him he could walk and encouraged him to continue walking 15 to 20 minutes a day. Another VA examination was performed in December 2019, which documented the Veteran’s diagnosis of DMII which was managed by insulin more than once per day. The examiner could not find any definitive findings of restrictive diet or activity regulation. Similarly, as with the December 2013 VA examination, it was noted that the Veteran required a visit to his diabetic care provider less than 2 times per month for episodes of ketoacidosis and/or hypoglycemia. Moreover, he had no hospitalizations for ketoacidosis or hypoglycemia reactions in the past year. The Veteran also had no progressive unintentional weight loss or strength attributable to his disability. Diabetic peripheral neuropathy was noted as a complication of the DMII and no functional impact on his ability to work as a result of the disability was reported. Based on the evidence of record, both lay and medical, the Board finds that the criteria for an increased disability rating in excess of 20 percent has not been met. Specifically, while the competent medical evidence of record shows that the Veteran’s caregivers prescribed daily injections of insulin and a restricted diet, there is no medical or lay evidence showing that the Veteran’s diabetes mellitus required “regulation of activities.” In so finding, the Board acknowledges that the Veteran believes he was told in 2006 to restrict his activities. However, VA treatment record outpatient notes from January 2006 reflect that the Veteran was encouraged to exercise when possible. Additionally, the Board acknowledges that in October 2013 and April 2014, Dr. M.O.K. recommended a regulation of activities but did not provide a rationale or instructions for the recommendation. His statement in October 2013 is also contradicted by the fact that within the same letter, it was noted that routine exercise had also been discussed at that medical visit. Dr. M.O.K.’s medical statements that regulation of activities is required is further outweighed by the fact that the April 2008, December 2013 and December 2019 VA examinations repeatedly found that the Veteran had no restrictions on what physical activities he could perform due to his DMII symptoms and VA treatment records throughout the relevant period on appeal also encouraged the Veteran to exercise. Moreover, the Board notes there is a difference, too, between the Veteran being limited in his activities as a result of his other physical disabilities, including cardiovascular disease for which he is not service connected for, versus his DMII. As such, these statements are assigned very little to no probative value. As noted above, each of the three criteria listed under criteria for a 40 percent rating under DC 7913 must be met in order to warrant such a rating. Here, the preponderance of medical evidence is against a finding that the Veteran’s activities had to be regulated due to his DMII. Thus, the evidence does not support a finding that the Veteran’s DMII resulted in “regulation of activities” (as that term is defined above). Hence, despite evidence of oral hypoglycemic agent and insulin being used to treat the Veteran’s DMII, along with a modified diet, the symptoms of his DMII most closely approximated the criteria for a 20 percent rating under DC 7913 and a higher rating is not warranted. As the preponderance of the evidence is against assigning a rating in excess of 20 percent for the Veteran’s DMII, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claim must be denied. The Board will next consider whether the Veteran is entitled to separate evaluations for complications associated with his diabetes. Service connection has already been awarded for diabetic peripheral neuropathy of the right and left lower extremities (to be discussed separately below) and sciatic nerve radiculopathy of the right and left lower extremities. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC, Note (1). At the March 2019 hearing, the Veteran testified that he had trouble with his eyes that he believed to be diabetic retinopathy based on the treatment he was receiving in both eyes. In November 2019, the Board remanded the issue for additional development. A January 2020 VA examination diagnosed the Veteran with diabetic retinopathy and bilateral chronic macular edema associated with DMII. The Board notes that these diagnoses have been added to the Veteran’s existing service-connected disability of left eye pseudophakic with right eye cataract, rated at 30 percent disabling (the only/maximum rating available), under DC 6029. See August 2020 Rating Decision. Although the Veteran has reported symptoms and been diagnosed with eye conditions related to diabetic complications, he has not suffered nor reported incapacitating episodes. Significantly, on the December 2019 and January 2020 VA examinations, the Veteran was not found to have had incapacitating episodes related to his retinopathy or maculopathy. Accordingly, the Board finds that a higher and/or separate rating is not warranted because under DC 6006, a higher rating for retinopathy and maculopathy is based on incapacitating episodes, which the Veteran does not have. In conclusion, the Board found no other potentially applicable diagnostic code that would provide for a higher (in excess of 30 percent) schedular rating for the Veteran’s service-connected eye condition; higher ratings and/or separate ratings are not warranted. Entitlement to separate ratings prior to December 28, 2019 and entitlement to initial ratings in excess of 10 percent from December 28, 2019 for right and left lower extremity femoral nerve diabetic peripheral neuropathy. Because the analysis for both of these claims is substantially similar, the Board will address them together for brevity. In the course of the Veteran’s appeal for an increased rating for DMII, he has been awarded separated ratings for right and left lower extremity femoral nerve diabetic peripheral neuropathy, rated 10 percent, effective December 28, 2019 pursuant to 38 C.F.R. § 4.124, DC 8526. See August 2020 Rating Decision. As this award is considered ancillary and inextricably intertwined with the DMII increased rating claim on appeal, it will be discussed herein. The Veteran filed his increased rating claim for DMII on August 06, 2013. The Board will address whether a separate rating prior to December 28, 2019 is warranted for right and left lower extremity femoral nerve diabetic peripheral neuropathy and whether a rating higher than 10 percent is warranted from that date. From August 06, 2013 to September 22, 2017 In April 2013, Dr. M.O.K noted that the Veteran had the occasional episode of tingling or weakness in his lower extremities. However, the December 2013 VA examination was silent for symptoms related to diabetic peripheral neuropathy. In a March 2015 VA treatment note, the Veteran complained of tingling and burning sensation in his feet. However, in a private treatment note from October 2015, the Veteran denied weakness or paresthesias of the bilateral lower extremities. In an April 2017 VA treatment note, the Veteran reported some tingling in both feet from mid-arch to his toes but by July 2017, he denied numbness or tingling in his hands and feet and no neuropathic symptoms were noted at his April 2017 podiatry appointment. The Board finds that the evidence does not show a diagnosis of peripheral neuropathy nor did the Veteran report consistent neuropathic symptoms. As such, there is no basis upon which a separate rating for right and left lower extremity femoral nerve diabetic peripheral neuropathy is warranted during this period. From September 22, 2017 Since September 2017, however, the Veteran repeatedly reported tingling and numbness in his feet and neuropathy was noted from his mid-foot. See VA treatment records uploaded August 2020. In assigning the effective date of December 28, 2019, the RO relied on the corresponding December 2019 VA peripheral nerves examination, in which the VA examiner endorsed a diagnosis of diabetic peripheral neuropathy involving the bilateral lower extremities. Accordingly, although the Board acknowledges that the Veteran was not formally diagnosed in a VA examination with lower extremity peripheral neuropathy until the December 2019 VA peripheral nerves examination, the evidence shows that the Veteran’s bilateral lower extremity peripheral neuropathy has existed since September 22, 2017. The December 28, 2019 assignment does not accord with the evidence of record that shows the Veteran’s neuropathy has existed during the period on appeal. Therefore, granting the Veteran the benefit of the doubt, the Board finds that the effective date of the initial grant of service connection for right and left lower extremity peripheral neuropathy should match that of his September 22, 2017 treatment note, when all subsequent treatment notes related to peripheral neuropathic symptoms were consistently noted as being present. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initial rating in excess of 10 percent from September 22, 2017 Paralysis of the femoral (anterior crural) nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. 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 30 percent disabling. Complete paralysis, affecting the quadriceps extensor muscle, is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The Board concludes that a rating of in excess 10 percent for mild incomplete paralysis of the femoral (anterior crural) nerve from September 22, 2017 is not warranted. VA treatment records note lower extremity neurological problems in connection with the Veteran’s DMII, but no greater complaints than numbness and tingling in his toes were found. Sensation was repeatedly noted to be intact. The Veteran was cautioned to take care of foot hygiene. See VA treatment records uploaded August 2020. During the December 2019 VA examination, the Veteran stated that he had bilateral tingling in his feet and intermittent pain on the tips of his toes. The examiner indicated that the Veteran had mild intermittent pain in both his right and left lower extremities and mild paresthesias and/or dysesthesias in his right and left lower extremities. Muscle strength, deep tendon reflexes, position sense, and vibration sense were all normal for the right and left lower extremities. Both right and left lower extremities exhibited decreased results for light touch and cold sensation, but the Veteran did not have muscle atrophy nor trophic changes attributable to his diabetic peripheral neuropathy. The Veteran had lower extremity diabetic peripheral neuropathy. The sciatic nerve was affected, resulting in mild incomplete paralysis in both the right and left sides. EMG studies were not performed. The examiner noted that the Veteran’s diabetic peripheral neuropathy did not impact his ability to work. Since September 22, 2017, and through December 28, 2019 the Veteran’s condition is best described as of only mild severity, bilaterally. Further, no motor impairments are shown; wholly sensory impairments should be rated as mild unless so severe as to require a maximum rating of moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. In conclusion, the Board finds that the Veteran’s disability picture is best represented by the current 10 percent evaluation for each leg, now assigned from September 22, 2017. It does not rise to a level of moderate severity to warrant a 20 percent evaluation in the absence of moderate symptoms. In denying a rating in excess of 10 percent, 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Richardson, 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.