Citation Nr: 21021532 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-14 982 DATE: April 13, 2021 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type II (DM II) is denied. Entitlement to a rating in excess of 10 percent for left lower extremity (LLE) peripheral neuropathy (PN) is denied. Entitlement to a rating in excess of 10 percent for right lower extremity (RLE) PN is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran’s service-connected DM II required insulin and a restricted diet, but has not required regulation of activities. 2. For the entire appeal period, the Veteran’s service connected LLE PN symptoms were manifested by no worse than mild incomplete paralysis. 3. For the entire appeal period, the Veteran’s service connected RLE PN symptoms were manifested by no worse than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran’s service-connected DM II have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for a rating in excess of 10 percent for LLE PN have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, DC 8520. 3. The criteria for a rating in excess of 10 percent for RLE PN have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from September 1972 to October 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In July 2018, the Board remanded the claims for further development. The claims have now returned to the Board for adjudication. In a January 2021 rating decision, service connection for GERD was granted. Thus, this claim is no longer before the Board as this represents a full grant of benefits. Regarding entitlement to a total disability rating based on individual unemployability (TDIU), a February 2021 rating decision denied the claim. In March 2021, the Veteran filed a supplemental claim. The Agency of Original Jurisdiction (AOJ) has yet to issue a rating decision in response to the supplemental claim. As the claim is still pending with the AOJ, the Board will not address the claim in this decision. The Board also notes that additional VA treatment records were added to the claims file after the most recent January 2021 supplemental statement of the case (SSOC) was issued. The automatic waiver provision does not apply. 38 U.S.C. § 7105(e) (automatic waiver of new evidence does not apply to evidence developed by VA). However, the additional evidence is not relevant to the claims decided herein. Therefore, the Board finds that a waiver of AOJ review is not required for these claims. See 38 C.F.R. § 19.37. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes Mellitus The Veteran is currently assigned a 20 percent rating for his service-connected DM II under Diagnostic Code (DC) 7913. Under DC 7913, a 40 percent rating is awarded when diabetes mellitus requires one or more, daily injection of insulin, a restricted diet, and regulation of activities. A 60 percent rating is for application when the diabetes mellitus requires insulin, a 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 maximum 100 percent rating is warranted where the disorder requires 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. See 38 C.F.R. § 4.119, DC 7913. Medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Because Diagnostic Code 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). In February 2014, the Veteran was afforded a VA Examination (VAX) for DM II. The VA examiner determined that the Veteran was diagnosed with DM II in March 2008. The Veteran was prescribed an oral hypoglycemic agent, but did not require regulations of activities as part of his medical management of DM II. He visited his diabetic care provider for episodes of ketoacidosis or episodes of hypoglycemia less than 2 times per month. He had no episodes of ketoacidosis or hypoglycemia reactions that required hospitalizations over the past 12 months. He did not have unintentional weight loss and loss of strength attributable to his DM. His DM did not impact his ability to work. In October 2020, the Veteran was afforded a VAX for DM II. The VA examiner determined that treatment included management by restricted diet, prescribed oral hypoglycemic agents, and insulin that is required once per day. The Veteran did not require regulation of activities as part of his medical management of DM. He visited his diabetic care provider for episodes of ketoacidosis or episodes of hypoglycemia less than 2 times per month. He had no episodes of ketoacidosis or hypoglycemia reactions that required hospitalizations over the past 12 months. He did not have unintentional weight loss and loss of strength attributable to his DM II. His DM did not impact his ability to work. The VA examiner determined that the Veteran’s erectile dysfunction (ED) was at least as likely as not related to his DM II. The VA examiner also determined that he had diabetic PN. The VA examiner determined that his symptoms were generally mild at this time. In November 2017 the Board received correspondence from the Veteran’s representative that asserted a VA medical record record dated July 7, 2017, showed that the Veteran’s DM II required insulin, a restricted diet, and regulation of activities. The July 2017 VA treatment record shows that the Veteran was advised to maintain a healthy diet and engage in moderate exercise. There is no indication that the Veteran’s activities were restricted. Rather, the Veteran was counseled on the importance of daily exercise. In sum, although the evidence demonstrates that during the appeal period the Veteran’s DM requires insulin, oral medication, and a restricted diet, the medical evidence does not establish occupational and recreational activities were restricted due to DM II. See Camacho, 21Vet. App. at 364 (medical evidence of record must support finding that a veteran was instructed not to engage in strenuous recreational and occupational activities). The medical evidence of record clearly shows that the Veteran was not restricted in activity. Rather, he was regularly counseled on the importance of a heart healthy diet and daily exercise for a variety of health concerns. The Board has also considered the Veteran’s statements regarding his service-connected DM II. The Veteran is competent to describe his observations and the Board finds that his statements are credible. To the extent that the Veteran may believe that he is entitled to a higher rating for his disability, to include based on regulation of activities, the Board finds the medical findings by skilled professionals are more persuasive which, as indicated above, do not support a rating higher than 20 percent for DM II. Under Note 1 to 38 C.F.R. § 4.119, Diagnostic Code 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation. In this regard, the Veteran has documented complications associated with his service-connected DM II, including diabetic LLE PN, RLE PN, and ED, for which he has been granted service connection and is receiving separate ratings. There is no evidence of any other complications of DM II to warrant a separate disability rating. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran’s service-connected DM II, there is no reasonable doubt to be resolved in this case, and the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues regarding the increased evaluation claims, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Right and Left Lower Extremity Peripheral Neuropathy The Veteran is currently assigned 10 percent ratings for left and right lower extremity peripheral neuropathy under DC 8520. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DC 8620 and 8720.). 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, when 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. See 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 on the relative impairment of motor function, trophic changes, or sensory disturbance. See 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. See 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” A 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). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. VA treatment records from August 2013 reflect that the Veteran experienced numbness and tingling. In a February 2014 VAX for PN, diagnoses for lower extremity neuropathy were not noted, however findings were still provided for the lower extremities. The examiner noted decreased sensation for light touch of the right foot. Lower extremity nerve testing was normal. The Veteran was noted to have normal gait. No trophic changes or muscle atrophy was observed. The examiner also referenced September 2013 EMG studies which were included with the examination that were normal for the lower extremities. In October 2020, the Veteran was afforded a VAX for his PN. The VA examiner determined that the Veteran had LLE PN and RLE PN affecting the sciatic nerve that was characterized by mild incomplete paralysis. He had intermittent pain, paresthesias and/or dysesthesias, and numbness that was mild bilaterally. Strength and deep tendon reflex testing were normal. The Veteran did exhibit decreased light touch in the bilateral feet, and cold sensation testing was decreased for the bilateral lower extremities. The Veteran did not have muscle atrophy or exhibit trophic changes attributable to diabetic PN. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased rating for his bilateral lower extremity sciatic nerve peripheral neuropathy. The evidence does not show moderate, moderately severe, or severe incomplete paralysis or complete paralysis to warrant a rating in excess of 10 percent. In fact, the October 2020 VA examiner reported that the Veteran had mild incomplete paralysis of the sciatic nerve. While the Veteran did exhibit symptoms of intermittent pain, numbness, and paresthesias/dysesthesias, these symptoms were specifically noted to be mild. The Veteran also exhibited decreased light touch and cold sensation testing; however, strength testing and deep tendon reflex testing were normal. Vibration sensation testing and position sense testing were also normal. The Board again notes that there is no evidence of abnormal muscle strength, muscle atrophy, or trophic changes. As such, a higher rating for the Veteran’s bilateral lower extremity peripheral neuropathy is not warranted. The Board notes the Veteran’s complaints of pain, tingling, and numbness. However, the objective evidence of record does not indicate more than mild peripheral neuropathy of the sciatic nerves of the lower extremities. Moreover, when the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After considering the evidence of record, the Board finds that the preponderance of the evidence is against a finding that a higher evaluation is warranted for bilateral lower extremity peripheral neuropathy. In reaching this decision, the Board considered the doctrine of reasonable doubt, however as the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved in this case, and the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues regarding the increased evaluation claims, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In the July 2018 Board remand, the AOJ was directed obtain an opinion regarding the nature and etiology of the Veteran’s hypertension. The remand specifically indicated that although hypertension is not one of diseases listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide exposure applies, The National Academy of Sciences (NAS) has concluded that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension. See Nat’l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 2010 (2011) at 694; 77 Fed. Reg. 47,924-01 (Aug. 10, 2012). In the December 2020 opinion obtained, the examiner concluded that it was less likely than not that hypertension was incurred in or caused by service. In support of the opinion, the examiner referenced the Veteran’s normal separation examination during service and indicated that hypertension is not a recognized condition associated with Agent Orange exposure. VA regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Thus, given that the December 2020 examiner did not address whether herbicide exposure may have caused the Veteran’s hypertension, the Board finds that the December 2020 opinion is inadequate. Accordingly, a remand is necessary to obtain an addendum opinion regarding the nature and etiology of the Veteran’s hypertension. In a June 2013 VA treatment record, the Veteran asserted that his hypertension may be related to his service-connected diabetes. Thus, on remand, the addendum opinion obtained should also address whether the Veteran’s hypertension was caused or aggravated by his service-connected diabetes. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hypertension that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to a VA examiner for a medical opinion to determine the nature and etiology of his hypertension. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is considered competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has hypertension that is causally or etiologically related to his military service, to include any herbicide exposure therein (regardless of the fact that such an association may not be presumed). The examiner should also address whether it is at least as likely as not that any hypertension was caused by or aggravated by the Veteran’s service-connected diabetes In rendering his or her opinion, the examiner should address the National Academy of Sciences (NAS) literature indicating that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension. See Nat’l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 2010 (2011) at 694; 77 Fed. Reg. 47,924-01 (Aug. 10, 2012). In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s service-connected diabetes did not cause his hypertension, the examiner should still address whether his service-connected diabetes could have worsened his hypertension. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   3. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 4. After completing these actions, the AOJ should conduct any other development as may be indicated. J. SAIKH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith 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.