Citation Nr: 21009753 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-33 655 DATE: February 23, 2021 ORDER Entitlement to an initial rating higher than 20 percent for associated diabetic neuropathy, right lower extremity (RLE), is denied. Entitlement to an initial rating higher than 20 percent for associated diabetic neuropathy, LLE, is denied. Entitlement to an effective date earlier than February 26, 2009 for restoration of 30 percent rating for an acquired mental disorder is granted. Entitlement to an effective date earlier than February 27, 2009 for a total rating for an acquired mental disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record shows that the Veteran’s associated diabetic neuropathy has manifested at no worse than moderate incomplete paralysis of the sciatic nerve in either LE throughout the initial rating period on appeal. 2. The evidence of record shows that the Veteran’s VA compensation for his acquired mental disorder was suspended in October 1980 because his whereabouts were unknown; at that time he was entitled to compensation at the 30 percent rate. 3. VA received the Veteran’s claim of entitlement to an increased rating for his acquired mental disorder on February 27, 2009. CONCLUSIONS OF LAW 1. The criteria for initial rating higher than 20 percent for associated diabetic neuropathy, RLE, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for initial rating higher than 20 percent for associated diabetic neuropathy, LLE, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, DC 8520. 3. The criteria for an effective date of the day following the date of the last payment for restoration of his compensation at the 30 percent rate for his acquired mental disorder have been met. 38 C.F.R. § 3.158(c). 4. The criteria for entitlement to and effective date earlier than February 27, 2009 for a total rating for his acquired mental disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On initial review of this case, the Board allowed a total rating for the acquired mental disorder as of February 27, 2009 and allowed an initial rating of 10 percent for each LE for associated diabetic neuropathy. The Board noted that the Veteran had timely appealed the issues of the effective dates for his total rating and the restoration of his VA compensation, but the Agency of Original Jurisdiction (AOJ) had not issued Statements of the Case (SOC). Hence, the Board remanded those issues for issuance of related SOCs and also remanded the initial neuropathy ratings for a current examination. See 02/27/2020 BVA Decision. The AOJ implemented the total rating allowed by the Board in a May 2020 rating decision. See 05/28/2020 Rating Decision – Narrative. The AOJ issued SOCs for each of the effective date appeals as directed in the Board remand, and the Veteran timely perfected the appeal of both issues. See 12/01/2020, 12/02/2020 SOCs; 12/30/2020 VA Form 9. Hence, those issues are properly before the Board and will be addressed in the decision below. Further, while the case was on remand, the AOJ granted an initial rating of 20 percent for each LE for associated diabetic neuropathy, effective April 2, 2012. See 07/30/2020 Rating Decision – Narrative. As discussed in further detail in the decision below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to an initial rating higher than 20 percent for each LE for associated diabetic neuropathy is denied. Applicable Law and Regulation Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Rating Criteria Consistent with the findings of the VA examination, the AOJ rated the Veteran’s radiculopathy as incomplete paralysis of the sciatic nerve. Peripheral neuropathy is rated as paralysis and incomplete paralysis of peripheral nerve pathology. See 38 C.F.R. § 4.124a. Under these criteria, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id., Diseases of the Peripheral Nerves. Under these criteria, an 80 percent rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.” A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A 40 percent rating is assigned for moderately severe incomplete paralysis; and, a 20 percent rating is assigned for moderate incomplete paralysis. 38 C.F.R. § 4.124a, DC 8520. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. It should also be noted that use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran is fully competent to report the symptoms of his disability that he has experienced. 38 C.F.R. § 3.159 (a)(2). Discussion In April 2012 VA received the Veteran’s formal claim for a total rating based on unemployability. See 04/02/2012 VA 21-8940. Upon receipt of the examination report, the AOJ granted service connection for type II diabetes mellitus and associated diabetic neuropathy and assigned an initial rating of 10 percent for each LE, which the Veteran appealed. See 09/13/2013 Rating Decision – Narrative. As noted earlier, the Board remanded the issue for a current examination, to include assessment of the Veteran’s testimony as concerned his symptoms. While the case was on remand, the AOJ granted an initial rating of 20 percent for each LE, effective in April 2012, which is the start of the appeal period for this issue. See 38 C.F.R. § 3.400. Hence, the Board’s review will be limited to a determination of whether the Veteran’s LE neuropathy has manifested with a severity of moderately severe or severe at any time during the rating period. Upon receipt of the Veteran’s formal claim of unemployability the AOJ arranged an examination. The examination report (05/14/2012 VA Examination, P. 14-26) reflects that the examiner diagnosed DM2 and sensory diabetic neuropathy at the examination. The Veteran reported a 2-year history of numbness and tingling in both feet, and the examiner noted lay reported subjective symptoms of mild paresthesias and numbness of the LEs. Physical examination revealed motor strength of 5/5 of each LE, and there was no evidence of muscle atrophy. Reflexes were 1+ at the knees and ankles bilaterally; sensation was decreased at the foot and toe of each foot; and, position and vibration sense were normal. Where vibration sense findings were noted the examiner did not check a box for the left lower extremity. Nonetheless, the Board deems that an oversight and finds no indication of abnormal vibration sense at the LLE. The examiner noted that the involvement was incomplete paralysis of the sciatic nerve, which he assessed as of mild severity. The examiner noted that the disability did not interfere with the Veteran’s ability to attend to his activities of daily living (ADL). The Board finds that the objective findings on clinical examination show that when compared to complete paralysis of the sciatic nerve, the severity of the Veteran’s neuropathy did not meet or approximate the criteria for moderate severity. As noted, the objective findings revealed a decrease in reflexes and sensation to light touch at the foot and toe of each foot. The LEs demonstrated normal strength without any indication of atrophy. Hence, the Board finds that moderate severity was not met or approximated. 38 C.F.R. §§ 4.1, 4.124a, DC 8520. At the Board hearing the Veteran testified that he experienced numbness and an weekly electrical shock-like sensation at the tips of his toes that impacted his balance. See 03/06/2019 Hearing Transcript, P. 10-11. As the Veteran’s testimony was competent evidence that his disability had worsened, see 38 C.F.R. § 3.159(a)(2), the Board remanded for a current examination. The examination report (07/16/2020 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the claims file and took and recorded the Veteran’s lay reported history of his disability and its symptoms. The examiner noted the Veteran’s complaints of pain and electric shock-like sensation in his toes, that his toes felt cold, and that his symptoms impacted his ability to walk. The examiner noted subjective symptoms of moderate intermittent pain; moderate paresthesias, and moderate numbness of the LEs. Physical examination revealed normal 5/5 strength throughout the LEs without evidence of muscle atrophy. Reflexes were 2+ at the knees, and 1+ at the ankles. Sensation to light touch was decreased at the toes; and, sense to position, vibration, and cold was decreased. The examiner noted that the diagnosis of record of diabetic sensory neuropathy of the LEs was confirmed on examination, and that the disability primarily affected the Veteran’s feet. Id. P. 6. In its remand instructions, the Board informed the examiner that the Veteran was competent to personally report his symptoms, and that his lay reports had to be considered. The Board’s instruction, however, referred to the Veteran’s competency as it related to the rules of evidence, not his legal capacity or mental responsibility. The examiner apparently interpreted the Board instruction’s as referring to the latter, as the examiner noted that the Veteran understood all questions, etc., and that he was competent to make informed decisions. See Exam Report, P. 6. Nonetheless, as set forth above, the examiner in fact noted the Veteran’s reported lay symptoms, and there is no indication that they were not considered in the examiner’s assessment of moderate severity. Further, as noted earlier, is not the descriptive terminology that governs a rating. The Board finds that the objective findings on clinical examination continued to more nearly approximate moderate incomplete paralysis of the sciatic nerve when compared to complete paralysis. The Veteran’s motor strength in his LEs remained normal without evidence of muscle atrophy, and his ankle reflexes and sensory were decreased, not absent. Further, the examiner’s assessment of the impact on the Veteran did not indicate any inability of the Veteran to walk. The assessment of moderate severity includes the Veteran’s complaints of pain and other symptoms. Hence, the Board finds that the preponderance of the evidence of record shows that the disability has manifested at moderate severity throughout the initial rating period on appeal. 38 C.F.R. §§ 4.1, 4.124a, DC 124a. The Board finds no factual basis for a staged rating for any part of the rating period. Since the preponderance of the evidence of record is against a finding of moderately severe incomplete paralysis and a 40 percent rating, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 4.3. 2. Entitlement to an effective date earlier than February 26, 2009 for restoration of 30 percent rating for an acquired mental disorder is granted. Background A March 1976 rating decision granted service connection for paranoid schizophrenia and assigned an initial rating of 50 percent, effective in January 1975. See 03/16/1976 Rating Decision. The Veteran’s rating was reviewed in 1978 and, following receipt of a March 1978 VA examination report, the rating for his acquired mental disorder was reduced from 50 to 30 percent, effective September 1, 1978. The rating decision noted that he was to be reexamined in 2 years. See 05/26/1978 Rating Decision – Narrative. A VA letter notified the Veteran of the decision the next month. See 06/12/1978 Notification. He did not appeal the decision nor was additional related evidence received by the AOJ within one year of the decision. Hence, it became final. See 38 C.F.R. § 20.302 (1977). In 1980, after several of the Veteran’s compensation checks were returned as undeliverable, payment of his VA compensation was suspended, effective October 1, 1980. See 11/04/1980 VA 20-6560, Notice of Benefit Payment; 11/04/1980 20-8270, C&P Master Audit. The Veteran’s account remained in that state until VA received his claim of entitlement for an increased raring in February 2009. After undergoing a VA examination, the AOJ granted an increase from 0 to 50 percent, effective February 27, 2009. The rating decision notes that the disability was reduced to 0 percent for the period October 1, 1980 to February 26, 2009 because the AOJ was unable to evaluate it. See 07/09/2009 Rating Decision – Narrative and Codesheet. In correspondence dated in October 2009, the Veteran asserted that he contacted VA after relocating to California, VA had his address, and that VA never contacted him. He asserted further that he was still coping with the symptoms of his disability. See 10/01/2009 Correspondence. The VA ask the Veteran to provide evidence that would support an earlier date for the restoration of his benefits. See 03/18/2010 MAP Development. The Veteran appealed the effective date. See 09/20/2010 Third Party Correspondence; 08/04/2014 NOD. The Veteran’s representative asserted that the AOJ committed error by asking the Veteran to provide medical documentation to support his lay report of the status of his disability during the hiatus in his payments. See 09/07/2018 Third Party Correspondence. In any event, the issue is determined favorably without the need for consideration of this point. Discussion The Board notes that although the May 1978 rating decision noted that the Veteran would be reexamined in 2 years, there is no evidence that the AOJ ever scheduled an examination of him, attempted to schedule an examination, or requested that he report for an examination. Thus, the AOJ notation in the 2009 rating decision that the Veteran’s evaluation was reduced because the disability could not be evaluated is contrary to the facts of record. The Board notes further that there is no evidence in the claims file that the Veteran otherwise had a claim for an increased rating pending in October 1980 when his compensation was discontinued. Correspondence from the Veteran in 1984 only asked for a copy of his claims file to use for an appearance before a State Pardons Board. See 03/15/1984 VA 21-4138; 03/19/1984 Correspondence. Hence, the correspondence does not meet the requirement for an informal claim, see 38 C.F.R. § 3.157 (1983), or an implied claim. As a result of these facts, the Board finds that the provisions applicable to an abandoned claim are not applicable to the facts of the Veteran’s situation. See 38 C.F.R. § 3.158(a). Instead, the Board finds that the provisions that address the disappearance of a payee are applicable and dispositive. The applicable provision provides that where payments of pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. Chapter 18 have not been made or have been discontinued because a payee’s present whereabouts is unknown, payments will be resumed effective the day following the date of last payment if entitlement is otherwise established, upon receipt of a valid current address. 38 C.F.R. § 3.158(c). This provision is essentially the same as it was in 1980 when the Veteran’s compensation was discontinued. The only conditions noted in the regulation is that there be entitlement to the benefit and that VA be in receipt of a valid current address. In this case, those conditions have been met for some time. Hence, the Veteran is entitled to restoration of his compensation as of the day after his last payment. Id. Further, he is entitled to restoration at the 30 percent rate at which he was rated in 1980. There is no record that the AOJ complied with the required due process requirements to reduce a rating. See 38 C.F.R. § 3.105(e). Hence, there is no legal or factual basis for the AOJ to have determined that the Veteran’s rating for his acquired mental disorder was 0 percent between October 1980 and June 2009. The AOJ must determine the last date of payment at the 30 percent rate (likely the date of the last unreturned check) and restore the Veteran’s compensation effective the day afterward. 38 C.F.R. § 3.158(c). 3. Entitlement to an effective date earlier than February 27, 2009 for a total rating for an acquired mental disorder is denied. The Board remanded this issue because it was uncertain at the time how the issue of the restoration of the Veteran’s VA compensation might affect it. As discussed above, it does not. Applicable Legal Requirements Generally, the effective date for compensation for an increased rating is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o). Discussion In June 2009 the provisions applicable to informal and implied claims were still in effect. The applicable provision of the former provided that the date of a VA hospitalization or examination may be accepted as an “informal claim” as concerned a disability already service connected. 38 C.F.R. § 3.157 (2009). As noted, however, there is no record of any examination or other medical report dated prior to June 2009 that discussed the Veteran’s disability. Further, the Veteran’s request for a copy of his claims file in 1984 in no way constituted an implied claim of entitlement to an increased rating for his acquired mental disorder, as it did not mention his mental disability of its severity. See generally 38 C.F.R. § 3.155. Hence, by law, the earliest effective date available for the total rating allowed by the Board in the February 2020 decision was the date VA received his claim, which was February 27, 2009, and that is the effective date the AOJ assigned. 38 C.F.R. § 3.400(o). The preponderance of the evidence is against an earlier effective date. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53-56; see also 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.