Citation Nr: 21031212 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 06-30 092 DATE: May 20, 2021 ORDER Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity from July 30, 2015, on a substitution basis, is denied. Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity from July 30, 2015, on a substitution basis, is denied. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the left lower extremity from July 30, 2015, on a substitution basis, is denied. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the right lower extremity from July 30, 2015, on a substitution basis, is denied. Entitlement to an evaluation greater than 20 percent for the Veteran's type II diabetes mellitus on a substitution basis is denied. Prior to July 30, 2015, a 30 percent evaluation, but no higher, for the Veteran's peripheral neuritis of the right lower extremity on a substitution basis is granted. A 30 percent evaluation, but no higher, for the Veteran's peripheral neuritis of the left lower extremity prior to October 7, 2009, on a substitution basis, is granted. Entitlement to an initial evaluation greater than 30 percent for the Veteran's peripheral neuritis of the left lower extremity prior to July 30, 2015, on a substitution basis, is denied. FINDINGS OF FACT 1. From July 30, 2015, until his death, the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity was productive of moderately severe incomplete paralysis. 2. From July 30, 2015, until his death, the Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity was productive of moderately severe incomplete paralysis. 3. From July 30, 2015, until his death, the Veteran's peripheral neuritis of the femoral nerve of the left lower extremity was manifested by mild incomplete paralysis. 4. From July 30, 2015, until his death, the Veteran's peripheral neuritis of the femoral nerve of the right lower extremity was manifested by mild incomplete paralysis. 5. The Veteran's service-connected diabetes mellitus did not require regulation of activities. 6. Prior to July 30, 2015, the Veteran's peripheral neuritis of the right lower extremity was manifested by severe incomplete paralysis. 7. Prior to October 7, 2009, the Veteran's peripheral neuritis of the left lower extremity was manifested by severe incomplete paralysis. 8. Prior to July 30, 2015, the Veteran's peripheral neuritis of the left lower extremity was not manifested by compete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity from July 30, 2015, on a substitution basis, have not been satisfied. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to an evaluation in excess of 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity from July 30, 2015, on a substitution basis, have not been satisfied. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to an evaluation in excess of 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the left lower extremity from July 30, 2015, on a substitution basis, have not been satisfied. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8526. 4. The criteria for entitlement to an evaluation in excess of 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the right lower extremity from July 30, 2015, on a substitution basis, have not been satisfied. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8526. 5. The criteria for entitlement to an evaluation in excess 20 percent for the Veteran's type II diabetes mellitus, on a substitution basis, have not been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.119, Diagnostic Code 7913. 6. The criteria for a 30 percent evaluation, but no higher, for the Veteran's peripheral neuritis of the right lower extremity prior to July 30, 2015, on a substitution basis, have been satisfied. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8621. 7. The criteria for a 30 percent evaluation, but no higher, for the Veteran's peripheral neuritis of the left lower extremity prior to October 7, 2009, have been met. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8621. 8. The criteria for an evaluation greater than 30 percent prior to July 30, 2015, for the Veteran's peripheral neuritis of the left lower extremity from have not been met. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8621. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1964 to August 1972. He died in November 2016. The Appellant is the Veteran's surviving spouse. She was substituted before the Agency of Original Jurisdiction (AOJ) in a November 2017 decision. These matters are on appeal from a November 2004 rating decision. In a May 2018 decision, the Board of Veterans' Appeals (Board) denied the issues on appeal. The Appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the Board's May 2018 decision regarding the denied issues. In September 2019 and January 2021, the Board remanded the appeal for additional evidentiary development consistent with the April 2019 JMPR. The April 2019 JMPR found that the Board erred by failing to obtain the Veteran's VA and private treatment records. The JMPR specifically identified missing private treatment records from Dr. S.K.C., missing treatment records from the VA Medical Center (VAMC) in Brecksville, Ohio, missing VA September 2013 rehabilitation outpatient records, and August 2013 physical therapy records stored in the Veterans Health Information Systems Technology Architecture (VistA). These records have been associated with the record. The Board finds that there has been substantial compliance with its previous remand directives. INCREASED RATINGS Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. 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. Additionally, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The term "incomplete paralysis," with these and other peripheral nerve injuries, 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 1. Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity from July 30, 2015, on a substitution basis. The Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity was rated 40 percent disabling since July 30, 2015, pursuant to Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. In July 2015, the Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination. The Veteran indicated that he had to get up and walk round after sitting. He was unable to walk long distances, stand for long periods, or sit for long periods. He walked with a cane. The VA examiner reported that the Veteran had been diagnosed with bilateral lower extremity diabetic peripheral neuropathy since 2007. The Veteran's symptoms included severe intermittent pain in the lower extremities and mild paresthesias in the lower extremities. Testing indicated normal strength in the bilateral lower extremities, decreased reflexes, and decreased sensation. There was no muscular atrophy on examination. She found that the Veteran had moderately severe incomplete paralysis of the Veteran's left sciatic nerve. The evidence is against a finding that the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity has been manifested by severe incomplete paralysis, with marked muscular atrophy, which would warrant a 60 percent evaluation. There was no muscular atrophy on examination and the VA examiner indicated that the Veteran had moderately severe incomplete paralysis of the Veteran's left sciatic nerve. The Appellant's representative argues that the Veteran was entitled to a rating under Diagnostic Code 5110 for the functional loss of both feet. The Veteran had a right below the knee amputation in August 2009. Despite having a left foot ulcer, the Veteran retained function in his left foot. The June 2015 VA examiner found that the Veteran did not have functioning so diminished that amputation with prosthesis would equally serve the Veteran. He was also able to walk with a cane. Therefore, a rating under Diagnostic Code 5110 is not warranted. Based upon the forgoing, entitlement to an evaluation in excess of 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the left lower extremity from July 30, 2015, is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 2. Entitlement to an evaluation greater than 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity from July 30, 2015, on a substitution basis. The Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity was rated 40 percent disabling since July 30, 2015, pursuant to Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. In July 2015, the Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination. The Veteran indicated that he had to get up and walk round after sitting. He was unable to walk long distances, stand for long periods, or sit for long periods. He walked with a cane. The VA examiner reported that the Veteran had been diagnosed with bilateral lower extremity diabetic peripheral neuropathy since 2007. The Veteran's symptoms included severe intermittent pain in the lower extremities and mild paresthesias in the lower extremities. Testing indicated normal strength in the bilateral lower extremities, decreased reflexes, and decreased sensation. There was no muscular atrophy on examination. She found that the Veteran had moderately severe incomplete paralysis of the Veteran's right sciatic nerve. The Appellant's representative argues that the Veteran was entitled to a rating under Diagnostic Code 5110 for the functional loss of both feet. The Veteran had a right below the knee amputation in August 2009. Despite having a left foot ulcer, the Veteran retained function in his left foot. The June 2015 VA examiner found that the Veteran did not have functioning so diminished that amputation with prosthesis would equally serve the Veteran. He was also able to walk with a cane. Therefore, a rating under Diagnostic Code 5110 is not warranted. Based upon the forgoing, entitlement to an evaluation in excess of 40 percent for the Veteran's peripheral neuritis of the sciatic nerve of the right lower extremity from July 30, 2015, is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the left lower extremity from July 30, 2015, on a substitution basis. The Veteran's peripheral neuritis of the femoral nerve of the left lower extremity was rated as 10 percent disabling from July 30, 2015, pursuant to Diagnostic Code 8526. Diagnostic Code 8526 provides ratings for paralysis of the anterior crural (femoral) nerve. Diagnostic Code 8526 provides that 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 percent disabling. Complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. In July 2015, the Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination. The Veteran indicated that he had to get up and walk round after sitting. He was unable to walk long distances, stand for long periods, or sit for long periods. He walked with a cane. The VA examiner reported that the Veteran had been diagnosed with bilateral lower extremity diabetic peripheral neuropathy since 2007. The Veteran's symptoms included severe intermittent pain in the lower extremities and mild paresthesias in the lower extremities. Testing indicated normal strength in the bilateral lower extremities, decreased reflexes, and decreased sensation. There was no muscular atrophy on examination. She found that the Veteran had mild incomplete paralysis of the left femoral nerve. The Veteran's peripheral neuritis of the femoral nerve of the left lower extremity was not entitled to a rating in excess of 10 percent from July 30, 2015. The VA examiner found that the Veteran's neuritis of the femoral nerve of the left lower extremity was manifested by mild incomplete paralysis rather than moderate incomplete paralysis. There are no lay statements or medical evaluations that contradict the VA examiner's evaluation. The Board notes that the Veteran described his peripheral neuropathy of the bilateral lower extremities as severe. However, this decision is only in regard to the functional impairment of the Veteran's femoral nerve. The Board concedes the Veteran's lay statements of record concerning the functional impairment of his bilateral extremities. However, identifying the specific nerve that caused the functional impairment is outside the realm of a lay person. The Appellant's representative has argued that the Veteran was entitled to a rating under Diagnostic Code 5110 for the functional loss of both feet. The Veteran had a right below the knee amputation in August 2009. Despite having a left foot ulcer, the Veteran retained function in his left foot. The June 2015 VA examiner found that the Veteran did not have functioning so diminished that amputation with prosthesis would equally serve the Veteran. He was also able to walk with a cane. Therefore, a rating under Diagnostic Code 5110 is not warranted. Based upon the forgoing, entitlement to an evaluation in excess of 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the left lower extremity from July 30, 2015, is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8526. 4. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the right lower extremity from July 30, 2015, on a substitution basis. The Veteran's peripheral neuritis of the femoral nerve of the right lower extremity was rated as 10 percent disabling from July 30, 2015, pursuant to Diagnostic Code 8526. Diagnostic Code 8526 provides ratings for paralysis of the anterior crural (femoral) nerve. Diagnostic Code 8526 provides that 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 percent disabling. Complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. In July 2015, the Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination. The Veteran indicated that he had to get up and walk round after sitting. He was unable to walk long distances, stand for long periods, or sit for long periods. He walked with a cane. The VA examiner reported that the Veteran had been diagnosed with bilateral lower extremity diabetic peripheral neuropathy since 2007. The Veteran's symptoms included severe intermittent pain in the lower extremities and mild paresthesias in the lower extremities. Testing indicated normal strength in the bilateral lower extremities, decreased reflexes, and decreased sensation. There was no muscular atrophy on examination. She found that the Veteran had mild incomplete paralysis of the right femoral nerve. The Veteran's peripheral neuritis of the femoral nerve of the right lower extremity was not entitled to a rating in excess of 10 percent from July 30, 2015. The VA examiner found that the Veteran's neuritis of the femoral nerve of the right lower extremity was manifested by mild incomplete paralysis rather than moderate incomplete paralysis. There are no lay statements or medical evaluations that contradict the VA examiner's evaluation. The Board notes that the Veteran's peripheral neuropathy of the bilateral lower extremities was severe. However, this decision is only in regard to the functional impairment of the Veteran's femoral nerve. The Board concedes the Veteran's lay statements of record concerning the functional impairment of his bilateral extremities. However, identifying the specific nerve that caused the functional impairment is outside the realm of a layperson. The Appellant's representative has argued that the Veteran was entitled to a rating under Diagnostic Code 5110 for the functional loss of both feet. The Veteran had a right below the knee amputation in August 2009. Despite having a left foot ulcer, the Veteran retained function in his left foot. The June 2015 VA examiner found that the Veteran did not have functioning so diminished that amputation with prosthesis would equally serve the Veteran. He was also able to walk with a cane. Therefore, a rating under Diagnostic Code 5110 is not warranted. Based upon the forgoing, entitlement to an evaluation in excess of 10 percent for the Veteran's peripheral neuritis of the femoral nerve of the lower extremity from July 30, 2015, is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8526. 5. Entitlement to an evaluation greater than 20 percent for the Veteran's type II diabetes mellitus on a substitution basis. The Veteran's type II diabetes mellitus was rated as 20 percent disabling pursuant to Diagnostic Code 7913. Diagnostic Code 7913 provides ratings for diabetes mellitus. Diabetes mellitus requiring insulin and a restricted diet, or; oral hypoglycemic agent and a restricted diet, is rated 20 percent disabling. Diabetes mellitus requiring insulin, a restricted diet, and regulation of activities is rated 40 percent disabling. Diabetes mellitus requiring insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemia 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 rated, is rated 60 percent disabling. Diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemia 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 rated, is rated 100 percent disabling. 38 C.F.R. § 4.119. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. As defined in Diagnostic Code 7913, "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Id. The requirement of regulation of activities due to diabetes must be based on the clinical findings of a medical professional. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Because the rating criteria under Diagnostic Code 7913 are cumulative and successive, diabetes that does not meet the criteria at any one level of disability is precluded from the assignment of an increased evaluation at any higher level, since "each higher disability rating include[s] the criteria of each lower disability rating." Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (citing Camacho, 21 Vet. App. at 366-67). In other words, each rating for diabetes requires that all the criteria for any lower available ratings also be met. It thus follows that section 4.7 of the regulations, which directs that the higher of two potentially applicable disability evaluations will be assigned when the disability more nearly approximates the higher rating, does not apply to Diagnostic Code 7913 given it successive and cumulative criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (holding that section 4.7 cannot be used to circumvent the requirements for satisfying the criteria for a given rating under Diagnostic Code 7913 in light of its cumulative nature, and observing in this regard that "use of the conjunctive 'and'" in the criteria for a 40 percent rating indicates that "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation" notwithstanding section 4.7). The Veteran underwent a VA diabetes examination in September 2004. The VA examiner wrote that the Veteran was on a diabetic diet and required oral medication. The Veteran did not take insulin, did not test his blood sugar at home, there were no hypoglycemic episodes, and there was no history of diabetic coma, ketoacidosis or frequent hospitalizations for diabetic management. The VA examiner found that the Veteran had partial erectile dysfunction and mild peripheral neuritis involving both feet that was due to his type II diabetes mellitus. In October 2009, the Veteran was afforded another VA diabetes examination. There had been no episodes of ketoacidosis or hypoglycemic reaction. The Veteran had not been hospitalized for diabetes in the past year. However, the Veteran was on a selective diet. The Veteran had a below-the-knee amputation in August 2009. His activities were not restricted by his diabetes. There was no diabetic retinopathy. In July 2011, Dr. S.K.C. stated that the Veteran's diabetes mellitus required the use of insulin and metformin. The Veteran also had severe coronary artery disease. He wrote that the Veteran needed to avoid strenuous occupational and recreational activities to help keep his blood sugars relatively stable and to lessen the risk of further cardiac event. The Veteran was afforded a VA examination in July 2015. His diabetes required more than 1 injection of insulin per day. The Veteran did not require regulation of activities as part of the management of his diabetes mellitus. He visited his diabetic care provider less than twice per month for episodes of hypoglycemia and ketoacidosis. During the previous 12-month period, the Veteran did not require hospitalization for ketoacidosis or hypoglycemic reactions. There was no unintentional weight loss or loss of strength attributable to diabetes mellitus. The Veteran's diabetes complications were diabetic peripheral neuropathy, erectile dysfunction, peripheral vascular disease, and renal disease. The Veteran's type II diabetes mellitus did not require regulation of activities. The VA examination reports and treatment records do not provide any evidence that the Veteran's type II diabetes required regulation of activities. A higher rating under Diagnostic Code 7913 is not warranted. The Board acknowledges that Dr. S.K.C. wrote that the Veteran needed to avoid strenuous occupational and recreational activities to help keep his blood sugar relatively stable and lessen the risk of further cardiac event. However, he indicated that the Veteran's diabetes mellitus required insulin and metformin. Dr. S.K.C.'s statement documents that the combined effect of the Veteran's cardiac disability and type II diabetes mellitus required regulation of activities. The Board finds that the VA examination reports of record are more probative because they address whether the Veteran's type II diabetes mellitus, taken by itself, requires regulated activities. Furthermore, the Veteran was examined in July 2015. The VA examiner reviewed the record, including the July 2011 letter from Dr. S.K.C., and determined that the Veteran's type II diabetes mellitus did not require regulation of activities. Additionally, the lay statements do not suggest that the Veteran's type II diabetes mellitus required regulation of activities. In October 2007, the Veteran was asked if his diabetes mellitus required the regulation of his activity. He answered that he was instructed to keep his feet dry. The Board notes that the Veteran had diabetic complications including: diabetic nephropathy, hypertension, peripheral artery disease, erectile dysfunction, right lower extremity amputation, and neuritis. These complications have been assigned separate evaluations which, with the exception of the Veteran's evaluation for neuritis, have not been appealed to the Board. Thus, the Board does not have the jurisdiction to address them. Based on the forgoing, an evaluation in excess of 20 percent for the Veteran's diabetes mellitus is denied. 38 C.F.R. § 4.119, Diagnostic Code 7913. 6. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the right lower extremity prior to July 30, 2015, on a substitution basis. The Veteran's peripheral neuritis of the right lower extremity was rated as 10 percent prior to July 30, 2015, pursuant to Diagnostic Code 8621. That Diagnostic Code provides the rating criteria for evaluation of neuritis external popliteal nerve. Neuritis is evaluated under the same criteria as is incomplete paralysis of the nerve. The maximum rating assigned for neuritis is not that equal to severe incomplete paralysis. 38 C.F.R. § 4.123. Under this provision, mild incomplete paralysis warrants a 10 percent disability evaluation, moderate incomplete paralysis warrants a 20 percent disability evaluation; severe incomplete paralysis warrants a 30 percent evaluation; and, complete paralysis of the nerve warrants a 40 percent disability evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8621. The Veteran underwent a VA diabetes examination in September 2004. The VA examiner found that the Veteran had mild peripheral neuritis involving both feet that was due to his type II diabetes mellitus. The Veteran reported tingling and numbness of both feet on and off over the last several years that had become more constant. Peripheral pulses were not felt in both feet. Monofilament touch sensations were diminished over both feet. The VA examiner diagnosed mild peripheral neuritis involving both feet. A VA vascular surgery noted that the Veteran had pain standing and was unable to drive due to pain in his bilateral lower extremities. Pain was worse in the right left lower extremity rather than the left lower extremity. In October 2007, the Veteran testified that he needed a wheelchair to get around his apartment. He used the wheelchair because of the pain in his legs and feet. The wheelchair was not portable. He used a cane when he left his apartment. In October 2009, the Veteran was afforded a VA diabetes examination. He complained of bilateral numbness. The Veteran had a below-the-knee amputation of his right lower extremity in August 2009. His wound was still healing. The Veteran used a walker around his home. He was able to walk about 50 feet. There was pain at the wound site, but there was no muscle wasting or atrophy. Based upon the forgoing, the Board finds that the Veteran's peripheral neuritis of the right lower extremity prior to July 30, 2015, was manifested by severe incomplete paralysis. Although the September 2004 VA examiner found that the Veteran's peripheral neuritis was mild, the Veteran required the use of assistive devices prior to July 30, 2015. He was unable to stand for long periods of time and drive due to the pain in his bilateral lower extremities. He reported that his right lower extremity was more painful than the left. The Veteran underwent a below-the-knee amputation for his right lower extremity in August 2009. The Veteran was in receipt of a separation evaluation for that disability. However, he did not appeal his separation evaluation for his amputation and the Board does not have jurisdiction over the issue. The Appellant's representative argues that the Veteran was entitled to a rating under Diagnostic Code 5110 for the functional loss of both feet. The Veteran had a right below-the-knee amputation in August 2009. Despite having a left foot ulcer, the Veteran retained function in his left foot. He was able to walk for a limited distance at his October 2009 examination. Therefore, a rating under Diagnostic Code 5110 is not warranted. The Board has considered the lay statements of record. However, there is no evidence that the Veteran's peripheral neuritis of the right lower extremity was manifested by complete paralysis of the nerve. The Veteran was able to walk and retained some range of motion. Based upon the forgoing, entitlement to an evaluation 30 percent for the Veteran's peripheral neuritis of the right lower prior to July 30, 2015, is granted. 38 C.F.R. § 4.124a, Diagnostic Code 8621. 7. Entitlement to an evaluation greater than 10 percent for the Veteran's peripheral neuritis of the left lower extremity prior to October 7, 2009, on a substitution basis. 8. Entitlement to an initial evaluation greater than 30 percent for the Veteran's peripheral neuritis of the left lower extremity from October 7, 2009, to July 30, 2015, on a substitution basis. The Veteran's peripheral neuritis of the left lower extremity was rated as 10 percent disabling prior to October 7, 2009, and 30 percent disabling from October 7, 2009, to July 30, 2015, pursuant to Diagnostic Code 8621. That Diagnostic Code provides the rating criteria for evaluation of neuritis external popliteal nerve. Neuritis is evaluated under the same criteria as is incomplete paralysis of the nerve. Under this provision, mild incomplete paralysis warrants a 10 percent disability evaluation, moderate incomplete paralysis warrants a 20 percent disability evaluation; severe incomplete paralysis warrants a 30 percent evaluation; and, complete paralysis of the nerve warrants a 40 percent disability evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8621. A VA vascular surgery noted that the Veteran had pain standing and was unable to drive due to pain in his bilateral lower extremities. Pain was worse in the right left lower extremity rather than the left lower extremity. The Veteran underwent a VA diabetes examination in September 2004. The VA examiner found that the Veteran had mild peripheral neuritis involving both feet that was due to his type II diabetes mellitus. The Veteran reported tingling and numbness of both feet on and off over the last several years that had become more constant. Peripheral pulses were not felt in both feet. Monofilament touch sensations were diminished over both feet. The VA examiner diagnosed mild peripheral neuritis involving both feet. In October 2007, the Veteran testified that he needed a wheelchair to get around his apartment. He used the wheelchair because of the pain in his legs and feet. The wheelchair was not portable. He used a cane when he left his apartment. In October 2009, the Veteran was afforded a VA diabetes examination. He complained of bilateral numbness. Vibratory sensation was diminished in the left lower extremity. There was no atrophy of the extremities or flare-ups. The Veteran had an ulcer under his left heel. The Veteran used a walker around his home. He was able to walk about 50 feet. He used a brace on his left leg to compensate for his left foot drop. There was no limitation of motion of the left lower extremity. Prior to October 7, 2009, the Veteran's neuritis of the left lower extremity was manifested by severe incomplete paralysis. The Board finds that the VA vascular note and testimony regarding the Veteran's use of a wheelchair in his apartment and severe pain in the bilateral lower extremities demonstrate severe incomplete paralysis. However, prior to July 30, 2015, there was no complete nerve paralysis. The Veteran did not have limitation of motion in his left lower extremity. The Appellant's representative argues that the Veteran was entitled to a rating under Diagnostic Code 5110 for the functional loss of both feet. The Veteran had a right below-the-knee amputation in August 2009. Despite having a left foot ulcer, the Veteran retained function in his left foot. He was able to walk for a limited distance at his October 2009 examination. Therefore, a rating under Diagnostic Code 5110 is not warranted. The Board has considered the lay statements of record, but finds the examination findings to be more probative regarding the severity of the peripheral neuritis of the left lower extremity. The examination reports were based upon consideration of the Veteran's lay statements, examinations, and the VA examiners' medical expertise. Therefore, they are highly probative. Based upon the forgoing, a 30 percent evaluation, but no higher, for the Veteran's peripheral neuritis of the left lower prior to October 7, 2009, is granted. 38 C.F.R. § 4.124a, Diagnostic Code 8621. An evaluation greater than 30 percent, prior to July 30, 2015, for the Veteran's peripheral neuritis is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8621. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.