Citation Nr: 21009688 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-17 868 DATE: February 23, 2021 ORDERS Throughout the entire appeal period, entitlement to a 20 percent evaluation, but no higher, for service-connected peripheral neuropathy of left lower extremity, is granted. Throughout the entire appeal period, entitlement to a 20 percent evaluation, but no higher, for service-connected peripheral neuropathy of right lower extremity, is granted. Entitlement to an evaluation in excess of 40 percent for service-connected diabetes mellitus with erectile dysfunction is denied. Entitlement to an evaluation in excess of 10 percent for service-connected hypertension is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's bilateral lower extremity peripheral neuropathy was manifested by no more than moderate incomplete paralysis. 2. The Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider at any point during the appeal period. 3. The Veteran's hypertension has been manifested by continuous medication for control without objective findings of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent, but no higher, for diabetic peripheral neuropathy of the bilateral lower extremities have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520. 2. The criteria for a disability rating in excess of 40 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 3. The criteria for the assignment of a disability rating in excess of 10 percent for service-connected hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.104, DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1970 to October 1973. He was awarded the Vietnam Service Medal and Vietnam Campaign Medal, among other decorations, for this service. The Veteran died in March 2020 and the Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. In March 2019, the Board remanded the claim for examinations and development of the record. After a review of the remand, the Board is satisfied that there has been substantial compliance with its requested actions and no further action is necessary to comply with the remand’s directives. Therefore, the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the Veteran was in receipt of a total disability rating due to unemployability throughout the entire appeal period. As such, while the claims involve increased ratings, no inference of entitlement to a TDIU is necessary. Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board notes that this decision is the continuation of the Veteran’s appeal of a December 2012 rating decision and does not in any way decide or preclude any claims associated with the Veteran’s death. Increased Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. "Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran's disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 1. Bilateral Lower Extremity Neuropathy. The Veteran contends that a higher evaluation is warranted for the service-connected bilateral lower extremity diabetic neuropathy. After review of the lay and medical evidence, the Board agrees and finds that the bilateral lower extremity diabetic neuropathy more closely approximates a 20 percent evaluation throughout the entire appeal period. The Veteran’s bilateral lower extremity neuropathy is rated paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520. Under this code, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, which contemplates foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, and sensory disturbances. 38 C.F.R. § 4.120. The schedule of ratings does not define the terms "moderate" and "severe;" rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with respect to nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for "complete paralysis" given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See Id. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating to be assigned for neuralgia, usually characterized by a dull and intermittent pain of typical distribution so as to identify the nerve, will be that equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. In January 2012, the Veteran filed a claim for an increased evaluation for the service-connected bilateral lower extremity neuropathy. In October 2012, he underwent a VA examination to determine the severity of the bilateral lower extremity neuropathy. The Veteran reported severe intermittent pain, moderate paresthesias, and moderate numbness in the lower extremities. On examination, reflexes, vibration sensation, and light touch testing were decreased in the ankles and feet. The Veteran had no atrophy or trophic changes. The VA examiner indicated the Veteran’s bilateral lower extremity peripheral neuropathy resulted in mild incomplete paralysis. In February 2018, the Veteran underwent another VA examination to determine the severity of the service-connected bilateral lower extremity neuropathy. He reported moderate intermittent pain, paresthesias, and numbness, in the lower extremities, On examination, the Veteran had decreased deep tendon reflexes and light touch in the knee and ankle. There was no muscle atrophy detected but trophic changes were noted. The VA examiner indicated the Veteran’s bilateral lower extremity peripheral neuropathy resulted in mild incomplete paralysis. In December 2019, the Veteran underwent an additional VA examination to determine the severity of the service-connected bilateral lower extremity neuropathy. He reported weakness, numbness, and feelings of pins and needles that caused him to stumble and moderate intermittent pain, paresthesias, and numbness in the lower extremities. On examination, the Veteran had decreased deep tendon reflexes, light touch, and cold sensation, and position sense in the lower extremities. Vibration sensation was absent. There was no muscle atrophy detected but trophic changes were noted. The VA examiner indicated the Veteran’s bilateral lower extremity peripheral neuropathy resulted in moderate incomplete paralysis. Resolving all doubt in the Veteran’s favor, the Board finds that a 20 percent evaluation for the bilateral lower extremity diabetic neuropathy is appropriate for the entire appeal period. The Veteran has consistently reported numbness and pain in the lower extremities. The Board notes the October 2012 and February 2018 VA examiner indicated the Veteran’s bilateral lower extremity diabetic neuropathy resulted in mild incomplete paralysis. However, the record as a whole, including the Veteran's reports of numbness and pain more closely approximate a moderate impairment. The Veteran has consistently been noted to have decreased sensation in the lower extremities but retained sensation and based on the findings of the VA examiners does not represent a moderately severe level. At no point during the appeal period has the Veteran reported moderately severe symptoms of radiculopathy in the bilateral lower extremity or any neurological deficiencies that would be best represented by a moderately severe rating 2. Entitlement to a rating in excess of 40 percent for diabetes mellitus. The Veteran contends that he is entitled to a higher rating for diabetes mellitus. After review of the lay and medical evidence, the Board finds that an increased evaluation for the service-connected diabetes mellitus is not warranted. The Veteran's diabetes mellitus is rated under DC 7913. This DC provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 40 percent rating is warranted when it requires one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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 when diabetes requires 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913 (Note 1). Because DC 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus requires one or more daily injections of 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. The Board finds that at no point during the appeal period did the Veteran have episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. In October 2012, the Veteran underwent a VA examination to determine the severity of the service-connected diabetes mellitus (diabetes). The VA examiner indicated that Veteran’s diabetes was managed by a restricted diet, insulin more than one time per day, and he visited his diabetic care provider less than twice per month. There were zero episodes of ketoacidosis or hypoglycemic reactions that resulted in hospitalizations in the preceding 12 months. In February 2018, the Veteran underwent an additional VA examination to determine the severity of the service-connected diabetes. The VA examiner indicated that Veteran’s diabetes was managed by more than one insulin injection a day, regulation of activities, and less than two visits to his diabetic care provider per month. The VA physician also indicated the Veteran had unintentional weight loss of about 10 percent. There were zero episodes of ketoacidosis or hypoglycemic reactions that resulted in hospitalizations in the preceding 12 months. The Veteran underwent an additional VA examination in December 2019 to determine the severity of the service-connected diabetes. The VA examiner indicated that Veteran’s diabetes was managed by a restricted diet, insulin more than one time per day, and he visited his diabetic care provider less than twice per month. There were zero episodes of ketoacidosis or hypoglycemic reactions that resulted in hospitalizations in the preceding 12 months. VA treatment records are consistent with the VA examinations of record. Specifically, a review of the record shows no episodes of ketoacidosis or hypoglycemic reactions that resulted in hospitalizations during the appeal period. The Board notes that the Veteran has multiple complications of diabetes mellitus that are service connected, including unspecified diabetic retinopathy, bilateral lower extremity peripheral neuropathy, and bilateral lower extremity femoral peripheral neuropathy. The Veteran also receives special monthly compensation for loss of a creative organ due to erectile dysfunction. These are the only complications associated with the Veteran's diabetes mellitus. After review of the record, the Board finds that the Veteran did not have episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider as is required for a 60 percent evaluation for diabetes. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 40 percent during the period on appeal and the claim is denied. 3. Increased Rating for Service-connected Hypertension. The Veteran contends the service-connected hypertension warrants a rating in excess of the currently assigned 10 percent. The Board has reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for hypertension. Hypertension (or hypertensive vascular disease) is rated under DC 7107. Under this diagnostic code, a 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, DC 7101. By history, in January 2012, the Veteran filed for an increased evaluation for the service-connected hypertension. In October 2012, the Veteran underwent a VA examination for hypertension. Blood pressure readings (in mmHg) taken at the examination were: 155/77, 152/82, and 164/91. The Veteran's treatment plan included continuous medication for hypertension. In February 2018, the Veteran underwent a VA examination to determine the severity of his service-connected hypertension. The Veteran reported he was on several medications with fluctuating blood pressure readings. Blood pressure readings (in mmHg) taken at the examination were: 141/70, 145/73 and 120/69. In February 2018, the Veteran underwent a VA examination to determine the severity of his service-connected hypertension. The Veteran reported he was on several medications with fluctuating blood pressure readings. Blood pressure readings (in mmHg) taken at the examination were: 141/70, 145/73 and 120/69. VA treatment records document, in part, the following blood pressure readings (in mmHg): 131/77 (12/01/11), 147/80 (04/02/12), 167/89 (04/26/13), 178/79 (03/19/14), 134/70 (02/13/15), 143/67 (09/15/16), 142/65 (07/27/17), 162/62 (12/10/18), and 115/63 (11/12/19). Based on the medical evidence of record, the weight of the evidence does not establish predominant diastolic pressure over 110 mmHg or predominant systolic pressure over 200 mmHg. While the Board notes that the Veteran's blood pressure fluctuated throughout the appeal period, none of the readings indicate diastolic pressure over 110 mmHg or systolic pressure over 200 mmHg throughout the over nine year appeal period. Accordingly, as a preponderance of the evidence is against a schedular disability rating in excess of 10 percent for hypertension, the Board must deny this claim on a schedular basis. The Board must conclude that the evidence does not meet the criteria for a rating in excess of 10 percent for hypertension under DC 7107 for the entire appeal period. 38 C.F.R. § 4.104, Diagnostic Code 7107. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.