Citation Nr: 21011778 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-19 814 DATE: March 2, 2021 ORDER For the rating period from October 25, 2012, a disability rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction is denied. From July 26, 2016, a separate disability rating of 20 percent, but no higher, for right lower extremity (RLE) diabetic peripheral neuropathy is granted. From July 26, 2016, a separate disability rating of 20 percent, but no higher, for left lower extremity (LLE) diabetic peripheral neuropathy is granted. Service connection for a right foot condition is denied. REFERRED ISSUE Service connection for cerebrovascular accident secondary to diabetes mellitus is referred to the RO for adjudication. FINDINGS OF FACT 1. For the rating period from October 25, 2012, the service-connected diabetes mellitus with erectile dysfunction has been managed with oral hypoglycemic agent and restricted diet only; diabetes mellitus has not required insulin and regulation of activities; and the associated erectile dysfunction has been manifested by loss of power, but not by penile deformity, so is a noncompensable diabetic complication. 2. For the rating period from July 26, 2016, RLE diabetic peripheral neuropathy manifested as moderate incomplete paralysis of the sciatic nerve. 3. For the rating period from July 26, 2016, LLE diabetic peripheral neuropathy manifested as moderate incomplete paralysis of the sciatic nerve. 4. The Veteran has a current diagnosis tinea pedis of the right foot and hallux rigidus of the right great toe. 5. Right foot tinea pedis and hallux rigidus, which first manifested after service, are not related to service. CONCLUSIONS OF LAW 1. For the rating period from October 25, 2012, the criteria for a disability rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913. 2. Resolving reasonable doubt in the Veteran’s favor, from July 26, 2016, the criteria for a separate disability rating of 20 percent, but no higher, for RLE diabetic peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.124a, DC 8520. 3. Resolving reasonable doubt in the Veteran’s favor, from July 26, 2016, the criteria for a separate disability rating of 20 percent, but no higher, for LLE diabetic peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.124a, DC 8520. 4. The criteria for service connection for a right foot condition have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a right foot condition, and denied a disability rating in excess of 20 percent for the service-connected diabetes mellitus with erectile dysfunction. In September 2018, the Board remanded the issues on appeal for additional development, including to obtain outstanding private treatment records, afford the Veteran the opportunity to obtain a medical opinion relating a right foot condition to service, and to obtain VA diabetes mellitus and erectile dysfunction examinations. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the September 2018 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. The Veteran has also submitted evidence suggesting that a January 2019 cerebrovascular accident is related to the service-connected diabetes mellitus. See January 2019 private treatment record. However, a review of the records does not refect that the Veteran has submitted a claim for (secondary) service connection for a cerebrovascular accident, nor has there been any RO adjudication of a claim for service connection for cerebrovascular accident as secondary to diabetes mellitus. As such, the issue of service connection for cerebrovascular accident as secondary to the service-connected diabetes mellitus is REFERRED to the AOJ for appropriate action to provide the appropriate service connection claim form, as well as any required notice, assistance, and adjudication of the service connection issue. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Rating Diabetes Mellitus with Erectile Dysfunction The service-connected diabetes mellitus with erectile dysfunction is assigned a 20 percent rating from October 25, 2012 under Diagnostic Code 7913. 38 C.F.R. § 4.119. The Veteran contends that a higher rating is warranted for diabetes mellitus with erectile dysfunction as he has to take multiple pills to manage the condition. See July 2015 Correspondence, May 2016 VA Form 9. Under Diagnostic Code (DC) 7913, diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. 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 rated, is rated at 60 percent. 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 rated, is rated at 100 percent. 38 C.F.R. § 4.119. Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. Id. After review of the lay and medical evidence, the Board finds that, for the rating period from October 25, 2012, diabetes mellitus with erectile dysfunction symptoms and impairment have not approximated the criteria for a higher 40 percent rating, that is, diabetes mellitus requiring insulin and regulation of activities. VA outpatient treatment records continue to show that the diabetes mellitus has been managed with oral hypoglycemic agents and regulation of diet alone. Treatment notes indicate that diabetes mellitus has remained under good control with oral medications such as Glipizide, Metformin. See December 2014, April 2018, July 2018 VA treatment records. Additionally, the VA examiner in May 2013 and June 219, as well as the Veteran’s treating family physician have indicated that diabetes mellitus does not require treatment with insulin or regulation of activities, and has only been treated with oral hypoglycemic agents and regulation of diet throughout the period on appeal. See May 2016, June 2019 VA examination reports; October 2019 Disability Benefits Questionnaire. As the evidence does not show the need for insulin or regulation of activities, a higher 40 percent rating is not warranted for diabetes mellitus for the rating period from October 25, 2012. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, DC 7813. Additionally, the service-connected erectile dysfunction, which is a diabetic complication, does not warrant a separate compensable rating under Diagnostic Code 7522. 38 C.F.R. § 4.115b. While the evidence of record reflects that erectile dysfunction has manifested as loss of erectile power that has been managed with medication such as Viagra over the years, the evidence does not indicate that the condition resulted in any penile deformity to warrant a separate compensable 20 percent rating; therefore, the rating remains 0 percent, so will continue to be rated together with the diabetes mellitus. The Veteran described the extent of his erectile dysfunction as difficulty achieving and maintaining an erection. The VA examiner noted that the penis was normal in condition with no noted deformities upon examination and remarked that the erectile dysfunction has not manifested as functional impairment or symptomatology characterized by external or internal penile deformity. See June 2019 VA treatment records VA examination report. Additionally, the Veteran does not assert, and the record does not otherwise indicate, that the Veteran had a penile deformity, internal or external. For these reasons, the Board finds that the criteria for a separate (compensable) rating for erectile dysfunction have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.115b, Diagnostic Code 7599-7522. 2. Separate Rating for RLE Diabetic Peripheral Neuropathy 3. Separate Rating for LLE Diabetic Peripheral Neuropathy Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). 38 C.F.R. § 4.119. Diagnostic Codes 8520-8720 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8620. Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum rating equal to moderate incomplete paralysis. 38 C.F.R. §§ 4.124, 4.124a, Diagnostic Code 8720. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After a review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether a separate 20 percent (compensable) rating is warranted each for RLE and LLE diabetic peripheral neuropathy associated with the diabetes mellitus disability. The separate 20 percent ratings are warranted from July 26, 2016, which is the date the peripheral neuropathies were first diagnosed. 38 C.F.R. § 4.71a. A July 26, 2016 VA podiatry clinic examination reflects that the Veteran endorsed symptoms of paresthesias, burning, prinking, tingling, and numbness during a diabetic foot examination. The treating podiatrist noted loss of sensation in the both feet with sensation diminished. Subsequent podiatry notes indicate loss of sensation in 7 out of 10 pedal sites. Diagnosis was diabetes mellitus with neuropathy. See July 2016, August 2018, August 2019 VA treatment records. An October 2019 Disability Benefits Questionnaire completed by the Veteran’s treating physician, Dr. DePasquale, reflects a diagnosis of bilateral lower extremity peripheral neuropathy secondary to diabetes mellitus. The treating physician noted symptoms of moderate constant and intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Dr. DePasquale assessed that the bilateral lower extremity peripheral neuropathy manifested as moderate incomplete paralysis of the sciatic nerve. See October 2019 Disability Benefits Questionnaire. Resolving reasonable doubt in the Veteran’s favor, the Board finds that from July 26, 2016, the date diabetes with neuropathy in the bilateral lower extremities was first diagnosed, a separate compensable disability rating of 20 percent, but no higher, is warranted for right and left lower extremity diabetic peripheral neuropathy respectively based on moderate incomplete paralysis of the sciatic nerve. See 38 C.F.R. §§ 4.3, 4.7, 4.119, DC 7913, Note 1; 4.124a, DC 8520. The Board finds that a higher 40 percent rating is not warranted for the right and left lower extremity diabetic peripheral neuropathy from July 26, 2016, forward. As noted above, during the rating period from July 26, 2016, the bilateral lower extremity peripheral neuropathy has only manifested as moderate incomplete paralysis of the sciatic nerve with some diminished sensation. Treatment records otherwise reflect normal (5/5) strength with no muscle atrophy and normal (2+) deep tendon reflexes in the bilateral lower extremity. The Veteran’s lay report of symptoms also reflect that this condition has only manifested as moderate symptoms of pain, dysesthesia or paresthesias, and numbness. See October 2019 Disability Benefits Questionnaire. As such, for the rating period from July 26, 2016 forward, the evidence supports no more than moderate incomplete paralysis of the sciatic nerve, and has not more nearly approximated the criteria for a 40 percent disability rating, that is, moderately severe incomplete paralysis under Diagnostic Code 8520. See 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. 4. Service Connection for a Right Foot Condition The Veteran contends that he developed fungus under his toes three years after service discharge that continued to get worse. The Veteran reports that continuous problems with his toes following service required him to undergo surgery. See July 2015 Correspondence, January 2018 representative brief. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. Initially, the Board finds that the Veteran has current right foot disabilities of tinea pedis and hallux rigidus of the right great toe. See November 2012, February 2014 VA treatment records. After review of all the lay and medical evidence of record, the weight of the evidence is against a finding that the current right foot tinea pedis and hallux rigidus of the right great toe were caused by or incurred in service. The service treatment records are silent for relevant complaints, symptoms, diagnosis, or treatment of a right foot condition. The September 1967 service separation examination report shows that the feet were clinically normal upon examination. Additionally, the report of medical history indicates that, during the service separation examination, the Veteran specifically denied skin diseases and foot trouble. An October 1967 statement of medical condition reflects that the Veteran denied any change in his medical condition since the September 1967 service separation examination. See September 1967, October 1967. Post-service records are silent for any relevant complaints, symptoms, diagnosis, or treatment of a right foot condition until October 1972, five years after service separation. At that time, the Veteran underwent an excision of corns on condylectomy between the fourth and fifth toes on the right foot. The histories in the post-service records do not indicate that symptoms of corns between the right toes were present during or since active service. Subsequent treatment notes dated from 2007 to 2012 indicate that the Veteran developed a whitish macerated tender area between the fourth and fifth toes on the right foot. A fungal infection, tinea pedis, was diagnosed. During a February 2014 podiatry examination, the Veteran reported occasional pain in the right big toe. The diagnosis was hallux rigidus. See May 2007, July 2007, February 2009 private treatment records; November 2007, November 2012, February 2014 VA treatment records. Post-service treatment notes show no lay histories, for the purpose of treatment, of problems with skin irritation between the right fourth and fifth toes or pain in the right great toe that had been present during or since service separation. In a November 2018 appeal notice letter, the RO advised the Veteran that a nexus opinion relating any right foot condition to service must be reduced to writing and submitted for consideration. To date, the Veteran has not submitted a medical opinion relating a right foot condition to active service. Moreover, the Veteran’s lay report that he began to develop problems with the right foot, particularly foot fungus under his toes, three years after service, is not sufficient to support in-service incurrence of a right foot condition, as the lay report clearly indicates a post-service onset of the right foot condition. The Veteran has not been provided with a medical opinion regarding the theory of direct service connection adjudicated herein; however, no VA medical opinion is needed in this case. As explained above, the weight of the evidence demonstrates no in-service right foot injury or disease, no chronic symptoms of a right foot condition in service, no continuous symptoms of a right foot condition since service, and no right foot condition manifested to a compensable degree within one year of service. The weight of the lay and medical evidence, including the Veteran’s own statement regarding onset of symptoms, also demonstrates no right condition until many years after service. As there is not a reasonable possibility that a medical opinion would help substantiate the appeal because there is no in-service injury, disease, or event to which a currently diagnosed disability could be related by medical opinion, the Board finds that further development is not necessary on the theory of direct service connection. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Any medical opinion that purported to relate a current disability to service would necessarily assume an inaccurate fact of some in-service injury, disease, or event having occurred, contrary to the weight of the evidence and the Board’s findings of fact, so would be of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran’s right foot conditions, tinea pedis and right great toe hallux rigidus, and active service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a right foot condition on a direct or any other basis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.