Citation Nr: 21023231 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-13 338 DATE: April 20, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type II is denied. Entitlement to an initial 40 percent disability rating for diabetic peripheral neuropathy, left lower extremity (LLE) is granted. Entitlement to an initial 40 percent disability rating for diabetic peripheral neuropathy, right lower extremity (RLE) is granted. REMANDED Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) prior to June 18, 2018 is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus does not require regulation of activities. 2. Resolving reasonable doubt in favor of the Veteran, his diabetic peripheral neuropathy of the LLE is, at most, moderately severe. 3. Resolving reasonable doubt in favor of the Veteran, his diabetic peripheral neuropathy of the RLE is, at most, moderately severe. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.159, 4.119, Diagnostic Code 7913. 2. The criteria for a 40 percent disability rating for diabetic peripheral neuropathy of the LLE have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.159, Diagnostic Code 8520. 3. The criteria for a 40 percent disability rating for diabetic peripheral neuropathy of the RLE have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.159, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and July 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board previously remanded the case in December 2019 for further development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran was previously represented by MOPH. In November 2019, MOPH indicated that due to a lack of funding in their office, they would be unable to continue representation for the Veteran. See the November 2019 letter. A representative may withdraw services in a legacy appeal at any time before certification of the appeal to the Board, but may not withdraw services after certification unless good cause is shown. See 38 C.F.R. § 20.6. As good cause has been shown, the Board finds that representation has been withdrawn. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type II is denied. The Veteran is seeking a disability rating in excess of 20 percent for his service-connected diabetes mellitus type II. Specifically, the Veteran contends that his diabetes mellitus is more severe than reflected by his currently assigned disability rating. The Veteran’s diabetes mellitus type II is evaluated pursuant to Diagnostic Code 7913. Under this diagnostic code, a rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when diabetes mellitus requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when diabetes mellitus requires 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 mellitus 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. Relevant to this appeal, the criteria for rating diabetes are “successive.” Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). “Successive” criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). The term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 363. Medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In other words, a medical provider must indicate that the claimant’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” Id. Although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.2, those regulations do not apply where the rating schedule establishes successive criteria. Turning to the evidence of record, the Veteran was afforded a VA examination for his diabetes mellitus in June 2013. Treatment for his diabetes included management by restricted diet and prescribed oral hypoglycemic agents. Regulation of activities was not required for the management of the Veteran’s diabetes. He visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. The Veteran had not been hospitalized for episodes of ketoacidosis, hypoglycemic reactions, or hypoglycemia in the past 12 months. He had not experienced progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus and had no related complications. The examiner indicated that the functional impact of the Veteran’s diabetes mellitus type II included increased fatigue and decreased stamina. The Veteran was afforded a VA examination for his diabetes mellitus in April 2018. Treatment for his diabetes included prescribed oral hypoglycemic agents, more than one insulin injection per day, Humulin 70/30 80 units TID, and 1000 mg of metformin in the morning and 1500 mg in the evening. Regulation of activities was not required for the management of the Veteran’s diabetes. He visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemia. The Veteran had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months. He had not experienced progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus and had no related complications. The examiner indicated that there was no functional impact caused by the Veteran’s diabetes mellitus type II. The Veteran was afforded a VA examination for his diabetes mellitus in September 2018. Treatment for his diabetes included management by restricted diet, prescribed oral hypoglycemic agents, and more than one insulin injection per day. Regulation of activities was not required for the management of the Veteran’s diabetes. He visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemia. The Veteran had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months. He had not experienced progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus and had no related complications. The examiner indicated that there was no functional impact caused by the Veteran’s diabetes mellitus type II. The Veteran was afforded a VA examination for his diabetes mellitus in November 2020. Treatment for his diabetes included more than one insulin injection per day. Regulation of activities was not required for the management of the Veteran’s diabetes. He visited his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemia. The Veteran had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions in the past 12 months. He had not experienced progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus and had no related complications. The examiner indicated that the Veteran’s diabetes mellitus type II caused functional limitations and interfered with his daily activities, as he was unable to work or drive and needed to depend on others. A review of the Veteran’s treatment records reveals no indication that the Veteran is required to regulate his activities to control his diabetes mellitus. Based on the foregoing, an initial disability rating in excess of 20 percent is not warranted for the Veteran’s diabetes mellitus type II. The June 2013, April 2018, September 2018, and November 2020 VA examinations and post-service treatment records do not demonstrate the criteria required for the next higher rating under Diagnostic Code 7913. Notably, there is no evidence that the Veteran’s diabetes mellitus requires the regulation of activities. Accordingly, the Veteran’s claim for an initial disability rating in excess of 20 percent for diabetes mellitus type II is denied. 2. Entitlement to an initial 40 percent disability rating for diabetic peripheral neuropathy, LLE is granted. 3. Entitlement to an initial 40 percent disability rating for diabetic peripheral neuropathy, RLE is granted. The Veteran is seeking disability ratings in excess of 10 percent for his service-connected diabetic peripheral neuropathy of LLE and diabetic peripheral neuropathy of RLE. Specifically, the Veteran contends that his diabetic peripheral neuropathy of the bilateral lower extremities (BLE) is more severe than reflected by his currently assigned disability ratings. The Veteran’s diabetic peripheral neuropathy of the BLE is evaluated pursuant to Diagnostic Code 8520. Under this diagnostic code, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Turning to the evidence of record, the Veteran was afforded a VA examination for his diabetic peripheral neuropathy of the BLE in June 2013. The Veteran reported radiating pain from his back, thighs, and mid-calves after walking a short distance. The pain could last up to 30 minutes. The Veteran noted he used to have an intense numb and burning feeling behind his knees and down the back of his calves, but this was now replaced with electric sharp pains. He noted it was very hard for him to bend over and he had to hold on and bend over when he stood. On examination, the Veteran demonstrated moderate paresthesias and/or dysesthesias of the BLE, mild numbness of the BLE, no constant pain of the BLE, and no intermittent pain of the BLE. Muscle strength and deep tendon reflexes were normal. Light touch of the bilateral knees/thighs and ankle/lower leg was normal and decreased in the bilateral foot/toes. The Veteran had decreased position sense in the RLE. Vibration sensation and cold sensation were decreased in the BLE. Muscle atrophy and tropic changes were not present. The examiner indicated that the Veteran had bilateral mild incomplete paralysis of the sciatic nerve. The functional impact of the Veteran’s diabetic peripheral neuropathy of the BLE included worsening symptoms with prolonged standing, walking, and ladder climbing which impacted activities and exercises. He also experienced decreased stamina and fatigue. The Veteran was afforded a VA examination for his diabetic peripheral neuropathy of the BLE in April 2018. The Veteran reported worsening symptoms of his diabetic peripheral neuropathy. He experienced numbness and tingling down the legs and loss of feeling in his toes. Pain medication did not help much. On examination, the Veteran demonstrated severe intermittent pain and numbness of the BLE and moderate constant pain and paresthesias and/or dysesthesias of the BLE. Muscle strength testing revealed no movement against resistance with bilateral knee flexion, bilateral knee extension, bilateral ankle plantar flexion, and bilateral ankle dorsiflexion. Deep tendon reflexes were decreased in the bilateral ankles. Light touch was decreased in the bilateral ankles and absent in the bilateral foot/toes. Cold sensation was absent in the BLE. Muscle atrophy was not present. Trophic changes included smooth skin with no hair present on the Veteran’s BLE. The examiner indicated that the Veteran had bilateral moderate incomplete paralysis of the sciatic nerve and femoral nerve. Regarding functional impact of his diabetic peripheral neuropathy of the BLE, the Veteran reported he could barely walk, could not feel his toes, and his legs were severely weak. The Veteran was afforded a VA examination for his diabetic peripheral neuropathy of the BLE in September 2018. The Veteran reported worsening symptoms of his diabetic peripheral neuropathy, which included painful numbness, tingling, and burning with loss of sensation in the lower extremities. He was prescribed Elavil and Gabapentin with varying effects. He noted his sleep was impacted. On examination, the Veteran demonstrated severe intermittent pain, paresthesias and/or dysesthesias, and numbness of the BLE and moderate constant pain of the BLE. Muscle strength testing revealed less than normal strength with bilateral knee flexion, bilateral knee extension, bilateral ankle plantar flexion, and bilateral ankle dorsiflexion. Deep tendon reflexes were normal. Light touch was decreased in the bilateral ankles and bilateral knee/thigh and absent in the bilateral foot/toes. Position sense was normal bilaterally. Vibration sensation and cold sensation were decreased in the BLE. Muscle atrophy and tropic changes were not present. The examiner indicated that the Veteran’s sciatic nerve and femoral nerve were normal. Regarding functional impact of his diabetic peripheral neuropathy of the BLE, the VA examiner noted that the Veteran’s diabetic peripheral neuropathy could present functional impairments with prolonged standing, walking, lifting, and carrying. The September 2018 VA examiner issued an addendum in September 2018 clarifying that the Veteran’s diabetic peripheral neuropathy of the BLE was severe. The Veteran was afforded a VA examination for his diabetic peripheral neuropathy of the BLE in November 2020. The Veteran reported that although he was treated with medication and physical therapy, his condition had gradually worsened. Symptoms in his legs were an intermittent burning sensation with intermittent shock feeling. He was unable to climb stairs, left heavy items, and sit, stand or walk for an extended period due to pain. On examination, the Veteran demonstrated mild intermittent pain and paresthesias and/or dysesthesias of the BLE and absent constant pain and numbness of the BLE. Muscle strength testing of the BLE was normal. Deep tendon reflexes of the knee and ankle were decreased. Light touch was decreased in the bilateral ankles, bilateral knee/thigh, and bilateral foot/toes. Position sense was normal bilaterally. Vibration sensation and cold sensation were decreased in the BLE. Muscle atrophy and tropic changes were not present. The examiner noted bilateral mild incomplete paralysis of the femoral nerve and normal sciatic nerve. Regarding the functional impact of his diabetic peripheral neuropathy of the BLE, limitations included the inability to climb stairs, lift heavy items, and sit, stand, or walk for extended periods of time due to pain. Following review of record, the Board finds that the Veteran suffers from moderately severe incomplete paralysis from his diabetic peripheral neuropathy of the BLE. The Board recognizes that VA examinations reported a range of symptoms from mild to severe related to the Veteran’s diabetic peripheral neuropathy. However, the Board has found the Veteran’s written statements and October 2019 testimony both competent and credible in describing the severity of his symptoms. Therefore, the Board has resolved reasonable doubt in favor of the Veteran and finds that a 40 percent disability rating for moderately severe incomplete paralysis due to peripheral neuropathy of the LLE and RLE are warranted. The Board notes that disability ratings in excess of 40 percent are not warranted, as there is no indication that the Veteran’s diabetic peripheral neuropathy results in severe incomplete paralysis. The evidence of record, including treatment records, VA examinations, and the Veteran’s statements, does not show that the Veteran’s diabetic peripheral neuropathy of the BLE results in severe incomplete paralysis with marked muscular atrophy contemplated by a 60 percent rating or complete paralysis contemplated by an 80 percent rating. Accordingly, the Board finds that 40 percent disability ratings for the Veteran’s diabetic peripheral neuropathy of the LLE and diabetic peripheral neuropathy of the RLE are warranted. REASONS FOR REMAND 1. Entitlement to TDIU prior to June 18, 2018 is remanded. The Board notes that while an April 2019 rating decision granted TDIU, effective June 18, 2018, the issue stems from the Veteran’s August 17, 2011 claim and therefore remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). From August 17, 2011, the Veteran has met the percentage criteria for TDIU, as he was service-connected for diabetes mellitus with a 20 percent disability rating and has herein been granted 40 percent disability ratings for his diabetic peripheral neuropathy of the LLE and diabetic peripheral neuropathy of the RLE from August 17, 2011. The review file contains conflicting evidence regarding when the Veteran last worked. The Veteran submitted numerous Applications for Increased Compensation Based on Unemployability with an October 2012 form listing his last day of employment as January 12, 2012, a February 2013 form listing his last day of employment as July 15, 2010, an April 2013 form listing his last day of employment in October 2008, and an August 2018 form listing his last day of employment as August 10, 2008. The Veteran’s treatment records similarly reflect conflicting information regarding his employment. An August 2011 treatment record noted that the Veteran had managed his own business and had retired. A September 2011 treatment record noted that the Veteran could not stay for his appointment due to a client meeting he had scheduled. In October 2011, the Veteran reported he was about to lose his business. In January 2012, the Veteran reported his construction and remodeling business of 37 years was doing poorly. The Veteran noted his occupational function was fine, but his wife believed he was losing jobs due to his sleep issues. An August 2012 treatment record indicated that the Veteran was unable to perform physical labor and had applied for and been turned down by 50+ jobs. Due to these inconsistencies regarding the Veteran’s last date of employment, the Board finds that remand for additional development is necessary. The matter is REMANDED for the following action: 1. Request the Veteran submit an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability or other evidence of his work history. Given the conflicting information of record, the Veteran should be asked to provide accurate information regarding his work history. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.