Citation Nr: 21027555 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-05 161 DATE: May 6, 2021 ORDER Entitlement to an initial increased disability rating in excess of 20 percent for diabetes mellitus, type II (diabetes) is denied. Entitlement to an increased disability rating for peripheral neuropathy of the left lower extremity in excess of 10 percent prior to January 11, 2018 is denied. Entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity in excess of 10 percent prior to January 11, 2018 is denied. Entitlement to an increased disability rating for peripheral neuropathy of the left lower extremity of 20 percent, but no higher, from January 11, 2018 is granted. Entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity of 20 percent, but no higher, from January 11, 2018 is granted. FINDINGS OF FACT 1. The Veteran's diabetes does not require regulation of activities. 2. The Veteran's peripheral neuropathy of the left and right lower extremities, as secondary to his service-connected diabetes, was productive of mild, incomplete paralysis, prior to January 11, 2018. 3. The Veteran's peripheral neuropathy of the left and right lower extremities, as secondary to his service-connected diabetes, was productive of moderate, incomplete paralysis, from January 11, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial increased 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. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913. 2. The criteria for an evaluation in excess of 10 percent under Diagnostic Code 8520 for peripheral neuropathy of the Veteran's left and right lower extremities, prior to January 11, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an evaluation of 20 percent, but no higher, under Diagnostic Code 8520 for peripheral neuropathy of the Veteran's left and right lower extremities, from January 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1969 to December 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal of October 2011 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in January 2018. A transcript of the hearing has been associated with the Veteran's electronic claims file. In January 2019, the Board remanded the appeal to the RO for additional development. In a March 2019 rating decision, the RO assigned a 20 percent disability rating for the Veteran's left and right lower extremity peripheral neuropathy effective March 20, 2019. As this does not represent a full grant of the benefit sought on appeal, the issues of entitlement to increased disability ratings for peripheral neuropathy of the left lower extremity and right lower extremity remain on appeal. The appeal has been returned to the Board for further consideration. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In a March 2020 rating decision, the RO implemented a Board grant of service connection for unspecified depressive disorder and assigned the Veteran a 70 percent disability rating. The Veteran subsequently filed a supplemental claim under the AMA, asserting that the assigned rating is an "implicit denial of TDIU". As such, the issue of TDIU is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Rice, 22 Vet. App. at 453 (providing that a TDIU reasonably raised by the record is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating). Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 1. Entitlement to an initial increased rating in excess of 20 percent for diabetes mellitus, type II (diabetes) The Veteran's diabetes is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes 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 the diabetes 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. Note 1 to Diagnostic Code 7913 provides that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent rating, and that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). "Regulation of activities" is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Entitlement to an initial increased rating in excess of 20 percent for diabetes mellitus, type II. Having carefully considered the Veteran's lay contentions in light of the evidence of record and the applicable law, the Board finds that the overall evidence shows that the Veteran's disability meets the 20 percent disability rating for the entire period on appeal, as the Veteran does not require regulation of activities. The Board notes that the Veteran is currently separately service connected for erectile dysfunction as a complication of diabetes. See May 2013 Rating Decision. While the Veteran has been assigned a noncompensable disability rating for erectile dysfunction, he is in receipt of special monthly compensation for loss of a creative organ under 38 U.S.C. § 1114(k) and 38 C.F.R. 3.350(a). As noted above, note 1 to Diagnostic Code 7913 provides that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent rating. Therefore, the symptoms related to the Veteran's erectile dysfunction were not considered in evaluating the Veteran's diabetes. As noted above, each higher disability rating includes the criteria of each lower disability rating. Therefore, to warrant any higher rating the Veteran's diabetes must require regulation of activities. The Veteran was afforded VA examinations in July 2011, June 2014, and March 2019. The examinations determined that the Veteran does not require regulation of activities as a part of medical management of his diabetes. At the March 2019 VA examination, the Veteran reported that he continues to be active in spite of leg pains and rides a bike three to four miles a day. The examiner determined that the Veteran is able to engage in both physical and sedentary occupational tasks. Similarly, treatment records do not indicate the Veteran has been instructed by a physician to regulate his activities at any time throughout the course of this appeal. On the contrary, the Veteran has been encouraged to engage in physical activity. The Veteran is not entitled to a rating higher than 20 percent for diabetes. The evidence demonstrates that the Veteran's diabetes is treated with more than one injection of insulin per day, oral medication, and regulation of his diet, but he does not require regulation of activities. Additionally, the Veteran has had no episodes of ketoacidosis or hypoglycemia requiring hospitalization. Because the Veteran's diabetes does not require regulation of activities, a rating higher than 20 percent is not warranted. See 38 C.F.R. § 4.119. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an increased evaluation in excess of 20 percent for diabetes mellitus, type II must be denied. 2. Entitlement to an increased disability rating for peripheral neuropathy of the left lower extremity in excess of 10 percent prior to March 20, 2019, and in excess of 20 percent after March 20, 2019 3. Entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity in excess of 10 percent prior to March 20, 2019, and in excess of 20 percent after March 20, 2019 As noted above, during the pendency of this appeal the Veteran was assigned a disability rating of 20 percent for peripheral neuropathy of the left and right lower extremities from March 20, 2019. As discussed below, the Board finds that the Veteran is entitled to a 20 percent disability rating from January 11, 2018. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2019). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve disability, neuritis, 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 equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The Veteran's lower extremity peripheral neuropathy is rated under Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, where incomplete paralysis is rated 10 percent when mild, 20 percent when moderate, 40 percent when moderately severe, and 60 percent when severe, with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis, when 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. 38 C.F.R. § 4.124a. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2016). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Peripheral Neuropathy prior to January 11, 2018 Having carefully considered the Veteran's lay contentions in light of the evidence of record and the applicable law, the Board finds that the overall evidence shows that the Veteran's peripheral neuropathy of the bilateral lower extremities meets the criteria for a 10 percent disability rating prior to January 11, 2018. The Veteran was afforded a VA examination in April 2013. The Veteran reported symptoms of bilateral lower extremity cramping, numbness and tingling. The Veteran stated that he was prescribed Gabapentin twice daily for his peripheral neuropathy pain. The Veteran's symptoms were recorded as mild intermittent pain, paresthesias, and numbness of the bilateral lower extremities, and decreased sensation to light touch. The Veteran had normal deep tendon reflexes, normal position sense, and no trophic changes. The examiner characterized the severity of the Veteran's condition as mild incomplete paralysis of the sciatic nerve. The Veteran was again afforded a VA examination in June 2014. The Veteran reported burning pain, tingling, and numbness in the bilateral lower extremities. The Veteran stated that he was prescribed a topical cream for foot pain and numbness. The Veteran's reported symptoms consisted of moderate intermittent pain of the bilateral lower extremities; moderate paresthesias and/or dysesthesias of the bilateral lower extremities; moderate numbness of the bilateral lower extremities; and decreased sensation to light touch bilaterally in the feet and toes. The Veteran had normal deep tendon reflexes, normal position sense bilaterally, and no trophic changes. The severity of the Veteran's condition was again characterized as mild incomplete paralysis of the sciatic nerve. The Board finds that the Veteran's peripheral neuropathy of the left and right lower extremities has resulted in disability comparable to no more than mild incomplete paralysis prior to January 11, 2018. After a comprehensive review of the Veteran's medical history and examination findings, the Veteran's bilateral lower extremity diabetic peripheral neuropathy more nearly approximated mild and incomplete paralysis of the sciatic nerve. The Veteran's lay evidence is outweighed by the competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the medical findings in regard to the type and degree of the Veteran's impairment. Thus, the Board cannot find the conclusion of moderate impairment persuasive in regard to the determination of the Veteran's overall impairment associated with his disability prior to January 11, 2018. Peripheral Neuropathy from January 11, 2018 At the January 2018 Board hearing, the Veteran testified to worsening symptoms of daily sharp pain in his feet and legs, feeling like he was stepping on ice after getting up after sitting for long periods, and numbness in his feet. The Veteran also testified that he feels heaviness in his legs when walking for long periods of time. The Veteran reported taking Gabapentin three times a day for his peripheral nerve pain, with no improvement. The Veteran was afforded a VA examination in March 2019. The Veteran reported numbness and burning pain in his feet. The Veteran reported taking Gabapentin three times a day without effect. The Veteran also reported pain after walking and standing for long periods of time. The Veteran's symptoms were recorded as moderate intermittent pain of the bilateral lower extremities; mild paresthesias and/or dysesthesias of the bilateral lower extremities; moderate numbness of the bilateral lower extremities; decreased deep tendon reflexes of the bilateral lower extremities; decreased sensation to light touch of the bilateral feet and toes; decreased position sense of the bilateral lower extremities; decreased vibration sensation; trophic changes of no hair and discoloration on the lower legs. The severity of the Veteran's peripheral neuropathy was characterized as moderate incomplete paralysis of the sciatic nerve. The examiner noted functional impact in that the Veteran's pain and numbness limits pronged standing and walking. Based on the findings of the March 2019 VA examiner, the Veteran was assigned a 20 percent disability rating for peripheral neuropathy of the left and right lower extremities in a March 2019 rating decision. As the Veteran reported worsening of his symptoms that formed the basis of the higher rating at the January 2018 Board hearing, a disability rating of 20 percent from January 11, 2018 is warranted. No higher rating in excess of 20 percent is warranted based on the Veteran's lay reports alone because the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the medical findings in regard to the type and degree of the Veteran's impairment. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.