Citation Nr: 21008299 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 18-10 884 DATE: February 16, 2021 ORDER Entitlement to an initial disability rating prior to June 19, 2019 in excess of 20 percent for right upper extremity diabetic neuropathy associated with type II diabetes mellitus is denied. Entitlement to an initial disability rating prior to June 19, 2019 in excess of 20 percent for left upper extremity diabetic neuropathy associated with type II diabetes mellitus is denied. Entitlement to a disability rating from June 19, 2019 in excess of 40 percent for right upper extremity diabetic neuropathy associated with type II diabetes mellitus is denied. Entitlement to a disability rating from June 19, 2019 in excess of 30 percent for left upper extremity diabetic neuropathy associated with type II diabetes mellitus is denied. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy associated with type II diabetes mellitus (previously rated as bilateral neuropathy of the lower extremity secondary to diabetes) is denied. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy associated with type II diabetes mellitus (previously rated as bilateral neuropathy of the lower extremity secondary to diabetes) is denied. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the right femoral nerve associated with type II diabetes mellitus is denied. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the left femoral nerve associated with type II diabetes mellitus is denied. FINDINGS OF FACT 1. Prior to June 19, 2019, the Veteran’s right upper extremity diabetic neuropathy is manifest by no more than mild incomplete paralysis of the major extremity. 2. Prior to June 19, 2019, the Veteran’s left upper extremity diabetic neuropathy is manifest by no more than mild incomplete paralysis of the minor extremity. 3. From June 19, 2019, the Veteran’s right upper extremity diabetic neuropathy is manifest by no more than moderate incomplete paralysis of the major extremity. 4. From June 19, 2019, the Veteran’s left upper extremity diabetic neuropathy is manifest by no more than moderate incomplete paralysis of the minor extremity. 5. The Veteran’s right lower extremity diabetic peripheral neuropathy of the sciatic nerve is manifest by no more than moderate incomplete paralysis. 6. The Veteran’s left lower extremity diabetic peripheral neuropathy of the sciatic nerve is manifest by no more than moderate incomplete paralysis. 7. From October 1, 2020, the Veteran’s right lower extremity diabetic peripheral neuropathy of the femoral nerve is manifest by no more than moderate incomplete paralysis. 8. From October 1, 2020, the Veteran’s left lower extremity diabetic peripheral neuropathy of the femoral nerve is manifest by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for right upper extremity diabetic neuropathy prior to June 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. 2. The criteria for a disability rating in excess of 20 percent for left upper extremity diabetic neuropathy prior to June 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. 3. The criteria for a disability rating in excess of 40 percent for right upper extremity diabetic neuropathy from June 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. 4. The criteria for a disability rating in excess of 30 percent for left upper extremity diabetic neuropathy from June 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. 5. The criteria for a disability rating in excess of 20 percent for right lower extremity diabetic neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for a disability rating in excess of 20 percent for left lower extremity diabetic neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 7. The criteria for a disability rating in excess of 20 percent for right lower extremity diabetic neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 8. The criteria for a disability rating in excess of 20 percent for left lower extremity diabetic neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1963 until his honorable discharge in September 1967. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain an addendum opinion regarding the severity of the Veteran’s diabetic neuropathy of the bilateral upper and lower extremities from a VA examiner. In response, in October 2020, the RO obtained an addendum opinion for the Veteran’s diabetic neuropathy of the bilateral upper and lower extremities. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 1. Entitlement to an initial disability rating prior to June 19, 2019 in excess of 20 percent for right upper extremity diabetic neuropathy associated with type II diabetes mellitus 2. Entitlement to an initial disability rating prior to June 19, 2019 in excess of 20 percent for left upper extremity diabetic neuropathy associated with type II diabetes mellitus 3. Entitlement to a disability rating from June 19, 2019 in excess of 40 percent for right upper extremity diabetic neuropathy associated with type II diabetes mellitus 4. Entitlement to a disability rating from June 19, 2019 in excess of 30 percent for left upper extremity diabetic neuropathy associated with type II diabetes mellitus 5. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy of the sciatic nerve associated with type II diabetes mellitus (previously rated as bilateral neuropathy of the lower extremity secondary to diabetes) 6. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy of the sciatic nerve associated with type II diabetes mellitus (previously rated as bilateral neuropathy of the lower extremity secondary to diabetes) 7. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy of the right femoral nerve associated with type II diabetes mellitus 8. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy of the left femoral nerve associated with type II diabetes mellitus Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he is entitled to a higher disability rating. Paralysis of all radicular groups (the radial nerve, the median nerve, and the ulnar nerve) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Complete paralysis is rated as 90 percent for the major extremity and 80 percent for the minor extremity. 38 C.F.R. § 4.124A. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124A, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124A. Paralysis of the femoral 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, with marked muscular atrophy is rated as 30 percent disabling. Complete paralysis, of quadriceps extensor muscles is rated as 40 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). Prior to June 19, 2019 Regarding impairment of motor functions, the Veteran had normal muscle strength. Regarding trophic changes, the Veteran had smooth, shiny, hairless skin of the bilateral lower extremities. Regarding sensory disturbance, the Veteran had decreased light touch in his bilateral hands; bilateral ankles and lower legs; and his fingers and right foot. The Veteran’s light touch test also reflected that it was absent in his left foot and toes. The remaining tests were normal. Regarding loss of reflexes, the Veteran had normal deep tendon reflexes in his left knee, bilateral biceps, and bilateral triceps; decreased deep tendon reflexes in his bilateral brachioradialis and bilateral ankles; and the results showed an absence of deep tendon reflexes in his left knee. Regarding pain, the Veteran has mild intermittent pain (usually dull) in his bilateral upper extremities and moderate intermittent pain (usually dull) in his bilateral lower extremities. Furthermore, the Veteran had moderate paresthesias and/or dysesthesias in his bilateral upper and bilateral lower extremities and moderate numbness in his bilateral upper and bilateral lower extremities. Regarding muscle atrophy, the Veteran does not have muscle atrophy. Regarding complete paralysis, the Veteran does not have complete paralysis. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis of the bilateral median nerves and bilateral ulnar nerves with no disability to his radial nerves; and moderate incomplete paralysis of the bilateral sciatic nerves and no disability to his bilateral femoral nerves. 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. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for bilateral upper extremity diabetic neuropathy prior to June 19, 2019; and a rating in excess of 20 percent for bilateral lower extremity diabetic peripheral neuropathy (sciatic nerve). In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 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. From June 19, 2019 to October 6, 2020 Regarding impairment of motor functions, the Veteran continued to have normal muscle strength. Regarding trophic changes, the June 2019 VA examiner found that the Veteran no longer had trophic changes. Regarding sensory disturbance, the Veteran had decreased light touch in his bilateral hands and fingers and right foot. The Veteran’s light touch test also reflected that it was absent in his left foot. The remaining tests were normal. Regarding loss of reflexes, the Veteran continued to have normal deep tendon reflexes in his left knee. However, the Veteran’s remaining deep tendon reflexes reflected a decrease in his bilateral biceps, bilateral triceps, and right knee; and the results showed an absence of deep tendon reflexes in his bilateral brachioradialis and bilateral ankles. Regarding pain, the Veteran continued to have mild intermittent pain (usually dull) in his right lower extremity (with improvement and no pain reported in his left lower extremity and bilateral upper extremities), continued moderate paresthesias and/or dysesthesias in his bilateral upper and lower extremities; continued moderate numbness in his bilateral upper extremities; and a worsening of severe numbness in his bilateral lower extremities. Regarding muscle atrophy, the Veteran continued to not have muscle atrophy. Regarding complete paralysis, the Veteran continued to not have complete paralysis. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis of the bilateral median nerves and bilateral ulnar nerves with no disability to his radial nerves. The Board acknowledges the lay assertions of sensory disturbances starting 1 year prior to the June 2019 VA examination of the remaining digits of his left hand (after the 2009 table saw injury); loss of strength in the bilateral hands, intermittent burning pain in the dorsal of the right foot, loss of sensation of the right foot, and numbness of the left foot. However, the Board finds the medical of evidence of record to be more probative because the examiner is qualified to determine normal strength. 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. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for left upper extremity diabetic neuropathy associated with type II diabetes mellitus from June 19, 2019 to October 5, 2020; a rating in excess of 40 percent for right upper extremity diabetic neuropathy from June 19, 2019 to October 5, 2020; and a rating in excess of 20 percent for bilateral lower extremity diabetic peripheral neuropathy (sciatic nerve) from June 19, 2019 to October 5, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From October 6, 2020 Regarding impairment of motor functions, the Veteran continued to have normal muscle strength. Regarding trophic changes, the June 2019 VA examiner found that the Veteran continued to not have trophic changes. Regarding sensory disturbance, the Veteran had decreased light touch bilateral ankles and lower legs and an absence in his bilateral feet and toes. All remaining light touch tests were normal. Regarding loss of reflexes, the Veteran continued to have normal deep tendon reflexes in his left knee and showed improvement with normal deep tendon reflexes in his bilateral biceps, bilateral triceps, and bilateral brachioradialis. The Veteran also showed improvement in his deep tendon reflexes of his bilateral ankles and lower legs, showing a decrease in reflexes rather than an absence. The Veteran’s deep tendon reflex of the right knee worsened to reflect an absence of deep tendon reflex. Regarding pain, the Veteran’s pain improved to reflect no pain or paresthesias and/or dysesthesias reported. However, his numbness worsened to reflect severe numbness in his bilateral upper and bilateral lower extremities. Regarding muscle atrophy, the Veteran continued to not have muscle atrophy. Regarding complete paralysis, the Veteran continued to not have complete paralysis. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis of the bilateral radial nerves, bilateral median nerves, bilateral ulnar nerves with no disability to his radial nerves, bilateral sciatic nerves, and bilateral femoral nerves. 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. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for left upper extremity diabetic neuropathy associated with type II diabetes mellitus prior to June 19, 2019; and a rating in excess of 40 percent for right upper extremity diabetic neuropathy prior to June 19, 2019; a rating in excess of 20 percent for bilateral lower extremity diabetic peripheral neuropathy of the sciatic nerve; and a rating in excess of 20 percent for bilateral lower extremity diabetic peripheral neuropathy of the femoral nerve. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 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. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.