Citation Nr: 21024260 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-09 436 DATE: April 22, 2021 ORDER An initial rating higher than 10 percent for diabetes mellitus is denied. From March 23, 2015, a separate 10 percent rating for right lower extremity diabetic neuropathy is granted. From March 23, 2015, a separate 10 percent rating for left lower extremity diabetic neuropathy is granted. Service connection for fibromyalgia is denied. FINDINGS OF FACT 1. Diabetes mellitus was managed only with a restricted diet. 2. From March 23, 2015, the Veteran had bilateral lower extremity diabetic neuropathy characterized by mild incomplete paralysis. 3. The preponderance of the evidence is against finding that fibromyalgia began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 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. 2. The criteria for separate 10 percent disability ratings for right and left diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from September 1968 to September 1970. He died in May 2020. The appellant is his surviving spouse and has been substituted in his place for this appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and July 2013 rating decisions. It was previously remanded for additional development in October 2018. 1. An initial rating higher than 10 percent for diabetes mellitus The Veteran was assigned a 10 percent rating for diabetes under 38 C.F.R. § 4.119, DC 7913. DC 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. 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. Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. The Board finds that the Veteran’s diabetes mellitus has been manageable by restricted diet only during the period on appeal. VA examinations from February 2013 and March 2016; a VA opinion from April 2013; and VA treatment records from July 2016, November 2016, January 2017 and October 2019, clearly and collectively state that the Veteran’s diabetes was managed with a restricted diet and exercise, and that he did not take any medications for his diabetes. The only evidence to support a higher 20 percent rating is from private treatment records dated August 2014, which indicate a plan to start the Veteran on insulin. However, there is no indication that this plan was ever implemented because, as noted above, evidence generated before and after August 2014 shows that no insulin was used to manage his condition. Therefore, a higher 20 percent rating is not appropriate in this case. 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). The Veteran was already separately service-connected for erectile dysfunction as a complication of diabetes. He was assigned a 0 percent rating under DC 7522, and was separately awarded special monthly compensation for loss of use of a creative organ. A compensable rating under DC 7522 requires deformity of the penis. The evidence of record does not reflect any such finding, and neither the Veteran nor the appellant alleged otherwise. In August 2016, the Veteran was found to have pitting edema of the bilateral ankles. The treating physician ordered diabetic shoes and socks to prevent diabetic foot ulcers. Based on this evidence, the Board has considered whether separate ratings for peripheral vascular complications of diabetes are warranted. However, beyond the edema noted at the time, the Veteran was not formally diagnosed with any peripheral vascular condition associated with diabetes, and the treatment records generated before and after August 2016 affirmatively show that no further edema was present. Therefore, separate ratings for lower extremity vascular conditions are not warranted. Finally, VA treatment records from March 2015 show a diagnosis of diabetic neuropathy. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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. 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. Records from March 2015 show the Veteran experienced neuropathic pain in the legs and feet which awakened him at night. Additional records from October 2016 show complaints of burning pain in both feet. The Veteran was prescribed medication (gabapentin) to control his symptoms. Because the use of medication is not part of the above rating criteria, the Board may not consider the ameliorative effects of such medications in assigning a rating. Therefore, the overall weight of the evidence supports a finding of at least mild incomplete paralysis of the left and right lower extremities due to diabetic neuropathy as of March 23, 2015, the date of the diagnosis. However, the objective neurological findings show normal strength, sensation and reflexes before and after March 2015. Absent any objective indication of impairment, the Veteran’s subjective reports of pain do not establish a higher moderate level of incomplete paralysis. 2. Service connection for fibromyalgia The Veteran contended that he has experienced a chronic pain condition since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of fibromyalgia, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for any complaints, treatment or diagnoses related to fibromyalgia, and his September 1970 separation examination was normal. In VA records dated January 2011, when he was diagnosed with fibromyalgia, he reported pain symptoms dating back to his time in the military. However, previous VA treatment records from October 1995 and November 1995 show he reported a history of pain of only 10 to 15 years. This corresponds to an onset date no earlier than 1980, which 10 years after his discharge from service. The Board finds these contemporaneous records to be more probative than more recent statements regarding the onset of his pain symptoms. Therefore, the overall weight of the evidence is against a finding that fibromyalgia had its onset during service, and there is no indication of any other event, injury or disease from service that could be related to fibromyalgia diagnosed in 2011. As a result, service connection is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.