Citation Nr: 21021573 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-26 214 DATE: April 13, 2021 ORDER A rating in excess of 20 percent for peripheral neuropathy of the anterior crural nerve of the left lower extremity is denied. A rating in excess of 20 percent for peripheral neuropathy of the anterior crural nerve of the right lower extremity is denied. A rating in excess of 20 percent for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the anterior crural nerve of the left lower extremity is manifest by no more than moderate incomplete paralysis. 2. The Veteran’s peripheral neuropathy of the anterior crural nerve of the right lower extremity is manifest by no more than moderate incomplete paralysis. 3. The Veteran’s diabetes mellitus required only restricted diet, an oral glycemic agent, and a daily injection of insulin during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the anterior crural nerve of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 2. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the anterior crural nerve of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 3. The criteria for a rating in excess of 20 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from September 1969 to May 1971. In June 2018, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. The case was remanded for further development of the evidence in September 2018. This was accomplished and the case has now been returned for further appellate consideration. Increased Rating 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 evaluations shall be applied, 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the anterior crural nerve of the left and right lower extremities The Veteran contends he is entitled to a higher rating for peripheral neuropathy of each of the anterior crural nerves of the lower extremities. Review of the record shows that service connection was granted in a May 2012 rating decision. The current 20 percent rating was eventually awarded effective the date of the grant of service connection in 2011. As noted, the case was remanded by the Board in September 2018. Following evaluation, in a July 2020 rating decision, the Veteran was assigned separate evaluations for peripheral neuropathy of the sciatic nerves of each of his lower extremities. The Veteran has not appealed the ratings assigned for these awards. Therefore, the Board does not have jurisdiction over the sciatic nerve ratings and this decision will be restricted to the ratings of the neuropathy involving the anterior crural nerves. Paralysis of the anterior crural 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 is rated as 30 disabling. Complete paralysis of the quadriceps extensor muscles warrants a 40 percent rating. 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). A review of the record shows an examination was conducted by VA in May 2012. At that time, the diagnosis was diabetic peripheral neuropathy. The Veteran reported having constant pain that may be excruciating at times. Examination showed no constant or intermittent pain, paresthesias or dysesthesias in either lower extremity. Moderate numbness of both lower extremities was noted. Strength was normal at 5/5 in both lower extremities. Light touch sensation was normal except for the feet and toes where it was shown to be deceased in both lower extremities. Vibration, position, and cold testing was not performed. There was no muscle atrophy or trophic changes. The sciatic and anterior crural nerves were normal. The Veteran was not shown to have functional impairment as a result of his diabetic peripheral neuropathy. Another examination was conducted by VA in June 2014. The diagnosis was diabetic peripheral neuropathy. The Veteran did not report constant or intermittent pain, but had moderate paresthesias or dysesthesias and moderate numbness of both lower extremities. Strength testing was 5/5 in both lower extremities. Deep tendon reflexes were normal at both knees and ankles. Decreases to light touch were noted at the ankles and lower legs as well as both feet and the toes. Position, vibration, and cold sensation were not tested. There was no muscle atrophy or trophic changes. The Veteran exhibited signs of sciatic neuropathy, but the anterior crural nerves were found to be normal. The peripheral neuropathy impacted the Veteran’s ability to work in that he could not climb ladders and would occasionally fall when he attempted to work construction. Another examination was conducted by VA in April 2015. The diagnosis was diabetic peripheral neuropathy. Examination showed severe intermittent pain of the lower extremities, moderate paresthesias or dysesthesias of the lower extremities, and severe numbness of the lower extremities. Strength was normal at 5/5. Deep tendon reflexes were normal at 2+. Light touch was deceased in the knees and thighs and absent at the feet and toes. Position sense, vibration sense, and cold sensation were absent in both lower extremities. There was no muscle atrophy. Trophic changes were noted as loss of air in the lower legs. Incomplete paralysis of the sciatic and femoral (anterior crural) nerves that was quantified as mild were noted. Functional impact was noted as the Veteran being unstable on his feet with frequent falls in his work in construction management. The most recent examination was conducted by VA in September 2019. The diagnosis was diabetic peripheral neuropathy. The Veteran reported occasional burning and tingling symptoms and intermittent shooting pains in his feet. He had constant numbness that was worsened after standing for 10 minutes. He had issues with balance and had to quit his job because he had fallen multiple times. He reported moderate intermittent pain and moderate paresthesias and dysesthesias of both lower extremities. There was severe numbness of both lower extremities. Knee strength was normal, but ankle strength in plantar and dorsiflexion were decreased to 4/5 in both lower extremities. Deep tendon reflexes were normal at the knees and ankles. Light touch was absent in both ankles, feet, and toes. Position sense, vibration sense, and cold sensation were absent in both lower extremities. There was no muscle atrophy, but trophic changes were noted with loss of hair in the lower legs. Moderately severe impairment of both sciatic nerves was found, but Anterior crural nerves were normal. Functional impairment was described as a fall risk, inability to walk or stand for long periods of time, no climbing, heavy lifting or driving. Based on the above examination reports, the Board finds that the disability associated with only the Veteran’s anterior crural nerves is primarily manifested by numbness and mild incomplete paralysis. As noted, the impairment of the sciatic nerves has been separately rated and is not for consideration at this time. It is noted that the trophic changes and more severe symptoms noted on examination are found by the Board to be related to the sciatic nerve impairment, as both were identified on the same examination report. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by more than moderate incomplete paralysis of the anterior crural nerves. In fact, none of the examination reports found anterior crural nerve impairment of this severity. The Board acknowledges the Veteran’s hearing testimony of increased impairment, but find that the disability ratings awarded for his sciatic neuropathy accounts for these symptoms. 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 the anterior crural nerves of each lower extremity. 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. Entitlement to a rating in excess of 20 percent for diabetes mellitus The Veteran contends his diabetes mellitus is more disabling than currently evaluated. During the Board hearing in June 2018 he testified that his diabetes had worsened over the years. Diagnostic Code 7913 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 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection 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, Diagnostic Code 7913 (Note 1). 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). The question in this appeal is whether the Veteran’s diabetes mellitus required 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. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). An examination was conducted by VA in April 2015. The diagnosis was diabetes mellitus, type II. Treatment was noted to be management by a restricted diet, oral hypoglycemic medication and one insulin injection per day. The Veteran did not require regulation of activities as part of the medical management of his diabetes. He reported episodes of ketoacidosis or hypoglycemia less than two times per month and reported that he had not been hospitalized for these manifestations at any time over the past 12 months. He had no loss of strength or weight. Laboratory testing showed his most recent A1C to be 7.9 and his most recent fasting plasma glucose to be 206. The examiner indicated the Veteran’s diabetes did not impact his ability to work. VA outpatient treatment records dated in January 2019 show that the Veteran’s diabetes mellitus is stable. Private treatment records from May and August 2019 show that the Veteran was encouraged to exercise at least 30 minutes a day, every day of the week. An examination was conducted by VA in September 2019. At that time, the diagnosis was diabetes mellitus. This was managed by restricted diet, oral hypoglycemic agents and one insulin injection per day. The Veteran did not require regulation of activities as part of the medical management of his diabetes mellitus. He had not had any episodes of ketoacidosis or hypoglycemic reactions that required hospitalizations over the past 12 months. He had no loss of weight or strength attributable to his diabetes mellitus. Laboratory testing showed his A1C to be 7.2 and his fasting plasma glucose to be 209. The Board finds that the Veteran’s diabetes mellitus required only restricted diet, an oral glycemic agent, and a daily injection of insulin during the period on appeal. This is demonstrated on both VA examinations in the record. The VA outpatient treatment records show the Veteran’s diabetes mellitus to be stable, and the private treatment records show the Veteran was encouraged to exercise daily. The Veteran is competent to report increased symptoms of diabetes, but, the medical evidence of record is against a finding that regulation of activities has been required at any time during the period on appeal. The Veteran does have complications as a result of his diabetes mellitus that warrant a separate compensable rating, but these have been separately evaluated. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent for his diabetes mellitus during the period on appeal. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.