Citation Nr: 21031711 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 13-32 981 DATE: May 24, 2021 ORDER Entitlement to an effective date prior to March 6, 2017 for the grant of special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is denied. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy, right lower extremity, sciatic nerve, is denied. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy, left lower extremity, sciatic nerve, is denied. FINDINGS OF FACT 1. Need for aid and attendance has not been established prior to March 6, 2017. 2. Diabetic peripheral neuropathy of the right lower extremity, sciatic nerve, manifested with no more than moderate incomplete paralysis. 3. Diabetic peripheral neuropathy of the left lower extremity, sciatic nerve, manifested with no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 6, 2017 for the award of SMC based on aid and attendance have not been met. 38 U.S.C. §§ 1114(l), 5110; 38 C.F.R. §§ 3.400, 3.350, 3.351, 3.352. 2. The criteria for a rating in excess of 20 percent for diabetic peripheral neuropathy of the right lower extremity, sciatic nerve, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8620. 3. The criteria for a rating in excess of 20 percent for diabetic peripheral neuropathy of the left lower extremity, sciatic nerve, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to July 1970. The Veteran is deceased and the Appellant claims as the Veteran's surviving spouse. The Regional Office (RO) found she was a substitute claimant in September 2020. Prior to his death, the Veteran appeared at a Board hearing in August 2016; a transcript is of record. With respect to the Board hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The Board denied these claims in a January 2018 decision, and the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2018 Order and supporting Joint Motion for Partial Remand (JMR), the Court vacated the Board's decision on these issues. The Board subsequently remanded the matters for compliance with the JMR. Effective Dates Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). VA amended its adjudication regulations effective March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The regulation applicable to the above is therefore the current 38 C.F.R. § 3.155. 1. Aid and attendance prior to March 6, 2017 The Veteran initially was awarded an effective date of November 29, 2017 in a January 2018 rating decision. However, a July 2020 rating decision assigned a new effective date for the Veteran, which is the current effective date for the award of aid and attendance (March 6, 2017). This was the date of receipt of a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits for anemia. SMC is payable if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, acing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (noting that at least one factor listed in § 3.352(a) must be present for a grant of special monthly pension based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), bedridden will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. Bedridden will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). The Veteran underwent a VA aid and attendance examination. The examiner noted review of the claims file. The examiner noted that the Veteran was not permanently bedridden or currently hospitalized. He was able to travel beyond his current domicile. His normal daily activities included taking medication when he got up in the morning, showering independently, walking around the neighborhood to get some exercise, and on weekends he would visit his girlfriend. Imbalance affected his ability to ambulate more often that once a week. The Veteran discussed how he had fallen outside of his home 3 times that month when his legs gave out on him while using his cane. The Veteran had problems opening medication bottles and reaching for objects because of pain in the left shoulder. He ate out because he had difficulty preparing his own food. He had problems with his hands that affected his ability to open and hold objects. The Veteran used a cane and was able to walk independently for up to a few hundred yards. The Veteran had no restrictions on his ability to leave the home. On examination, there was mild or moderate impairment of the right and left upper extremities. With respect to the lower extremities, there was limitation of joint motion and muscle weakness, as well as lack of coordination in the left lower extremity. Weight bearing, propulsion, and balance were all normal. The Veteran reported that he could walk about one block without stopping. A February 2011 VA treatment record indicates that the Veteran had traveled from West Virginia to Boston to visit his mother. A June 2015 VA treatment record indicated that the Veteran was able to perform self-care and activities of daily living independently. A January 2016 VA scars examination documented painful scars to the back of the shoulder and left hip. The Veteran had difficulty using his left arm above his head in the same way that he could his right arm, including with lifting and reaching. The scars were not both painful and unstable. The nonlinear left shoulder scar was 5.5 by 6.5 centimeters and the linear left lower extremity scar was 11 centimeters long. A January 2016 VA left shoulder examination report also noted difficulty using the left arm above his head. The Veteran was right-hand dominant. There were flare-ups where the Veteran experienced increased pain lasting about 1 hour. Functional loss was due to difficulty using his left arm above his head and difficulty reaching for objects. On examination of the left shoulder, flexion was to 130 degrees, abduction to 120 degrees, external rotation to 50 degrees, and internal rotation to 90 degrees. Muscle strength was normal and there was no evidence of muscle atrophy. There was no shoulder instability. In August 2016, the Veteran reported that his exercise tolerance was limited to less than one block of walking due to general weakness, leg discomfort, and hip pain. He used a cane. In his August 2016 Board hearing, the Veteran testified that his wife had to help him put on pants, tie shoes, and other clothes. She also helped the Veteran get into and out of the bathtub because he was unstable. He walked with a right knee brace and a cane to prevent falls. The cane was used due to leg length discrepancy, according to the Veteran. The Veteran did not cook because he was afraid of having a bout of neuropathy, gout, or problems with his arthritis. The Veteran needed help with drying off his back after bathing due to problems with his left shoulder mobility. On questioning, the Veteran indicated his belief that he would be able to take a shower without assistance, but not a bath. At times, the Veteran needed assistance getting to and from the bathroom due to his knee giving way. The Veteran believed that he needed someone to assist with the needs of everyday living because of the severity of his service-connected disabilities. As to the neuropathy, the Veteran described a burning and itching sensation in the bottom of his feet. He experienced the sensation for 3 to 5 minutes when it occurred, and the incidents could occur multiple times per day or not at all in a day. The symptoms were worse in cold weather. In addition, there was numbness in the right leg. The Veteran believed the neuropathy was of more than moderate severity because his treating doctors had told him the condition was severe. An October 2016 neurology consult included a clinical assessment of mild neuropathy, probably diabetic. Testing showed absent reflexes in the knee and ankles, as well as from the toes down. Sensation was intact and there was normal muscle bulk, tone, strength, and coordination. Stability was normal, but the Veteran's gait was limited by orthopedic issues and pain. The Veteran reported burning and itching pain in his feet that were symmetric. On occasion, it was hard to lift his feet or legs. Subsequent an October 2016, EMG testing showed slowing at the right peroneal and tibial nerves and no potential at the right sural sensory nerve. The findings were compatible with axonal sensorimotor neuropathy due to diabetes. In February 2017, the Veteran was hospitalized overnight after passing out and falling while practicing with the church choir. The Veteran did report that he had changed and/or stopped taking certain medication prior to the incident. In March 2017, the Veteran sought treatment for long toenails and stated that he was unable to care for his feet due to back pain. There also was reported numbness. Following examination, the Veteran was provided with a nail file and instructed on proper foot care. VA treatment records first report problems with activities of daily living in May 2017 (requiring assistance with bathing and dressing). The next earliest VA treatment record regarding daily living is from September 2016 and notes the Veteran had normal gait with independent mobility, transfer, and bed mobility. As noted in the JMR, SMC for aid and attendance was granted in a January 10, 2018 rating decision, effective November 29, 2017. That rating decision also included a separate rating of 30 percent for coronary artery disease effective July 6, 2017, based on a finding of clear and unmistakable error, as well as continuation of a 100 percent rating for renal insufficiency. The JMR noted there was no reference to the November 2017 examination or the January 2018 rating decision in the prior, vacated Board decision. However, as already noted, a rating decision post-dating the JMR awarded an effective date for aid and attendance in March 2017, therefore the evidence post-dating the award is no longer relevant, as aid and attendance has already been awarded for this period. The Regional Office granted an effective date in March 6, 2017, because that was the effective date of entitlement to service connection for anemia secondary to kidney disease. The evidence shows that the weakness and easy fatigue attributable to anemia, along with the other disabling effects of kidney disease and dialysis, required aid and attendance. The Veteran's effective date for aid and attendance is based on the date of the claim for anemia. The effective date for anemia is not before the Board currently. Prior to March 6, 2017, the Board notes that the evidence of record does not show that the Veteran's service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. The Board recognizes that his bilateral diabetic peripheral neuropathy result in burning and tingling in the soles of his feet. In addition, the Veteran reports instability due to a leg length discrepancy that requires the use of a knee brace and a cane. That said, testing shows normal muscle strength in the lower extremities and no muscle atrophy. The Veteran can walk for a period of distance before having to stop due to pain. Thus, he clearly had not lost the use of both feet. Consequently, the Veteran can only establish entitlement to SMC prior to the current effective date under 38 U.S.C.§ 1114(l) if his service-connected disabilities caused him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a) set forth above. Prior to March 6, 2017, the evidence does not otherwise include any medical record suggesting a more severe level of impairment with respect to the performance of activities of daily living or otherwise suggesting that the Veteran was bedridden or so helpless that he requires regular aid and attendance. In particular, the first evidence of the need for aid and attendance as outlined by VA compensation law is VA treatment records dated in May 2017. Evidence prior to this does not show the need for regular aid and attendance, as outlined above. Rating Principles 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. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the 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. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 2. & 3. Bilateral diabetic peripheral neuropathy of the lower extremities With regarding to the bilateral neuropathy, the JMR notes multiple treatment records from VA records from VistA and Walter Reed National Military Medical Center had not been obtained. Further, the Board found that the right peroneal and tibial nerves are branches of the sciatic nerve and that separate evaluations for the impairment of such nerves is not warranted, but the Board failed to reference any medical evidence to support its finding that the right peroneal and tibial nerves are branches of the sciatic nerve and thus improperly relied on its own lay opinion to support such a finding, in contravention of Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran's lower extremities are rated at 20 percent each under diagnostic code 8620 since October 15, 2015, the month when the claim was received. He contended a higher rating is warranted. The RO evaluated the Veteran's disability of each lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8620. Under 8620, sciatic neuritis is rated in accordance with DC 8520. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 38 C.F.R. § 4.123 reads neuritis, cranial or peripheral, 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. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 reads neuralgia, cranial, or peripheral characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. 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 VA examination took place in January 2016. The Veteran was diagnosed with diabetic peripheral neuropathy from 2015, based on his reports of burning and sharp pain in the feet beginning in 2015. His doctor had told him the symptoms were representative of neuropathy. The Veteran described intermittent severe pain in the right and left lower extremities, as well as severe paresthesias and/or dysesthesias in the same extremities. On examination, muscle strength was normal in both extremities. Reflexes were decreased in the bilateral upper and lower extremities. Light touch, position, and cold sensation were normal in all extremities, but there was absent vibration sensation in the right and left lower extremity. There was no evidence of muscle atrophy. There were no trophic changes to the skin. The examiner noted that the Veteran had a lower extremity diabetic peripheral neuropathy but went on to note that right and left sciatic and femoral nerves were normal. EMG studies were not performed. The Veteran indicated that the peripheral neuropathy would affect his ability to work, in that he could see himself driving a bus and getting an attack of neuropathy and, when it comes, he had to do take his shoes off, and stomp his feet, right then. An April 2016 VA examination report addendum in response indicates that the Veteran does have diabetic peripheral neuropathy of the lower extremities., but instead had sciatic nerve has mild incomplete paralysis right and left. In his August 2016 Board hearing, the Veteran described a burning and itching sensation in the bottom of his feet. He experienced the sensation for 3 to 5 minutes when it occurred, and the incidents could occur multiple times per day or not at all in a day. The symptoms were worse in cold weather. In addition, there was numbness in the right leg. The Veteran believed the neuropathy was more than moderate severity because his treating doctors had told him the condition was severe. In August 2016, the Veteran reported that his exercise tolerance was limited to less than one block of walking due to general weakness, leg discomfort, and hip pain. He used a cane. An October 2016 neurology consult included a clinical assessment of mild neuropathy, probably diabetic. Testing showed absent reflexes in the knee and ankles, as well as from the toes down. Sensation was intact and there was normal muscle bulk, tone, strength, and coordination. Stability was normal, but the Veteran's gait was limited by orthopedic issues and pain. The Veteran reported burning and itching pain in his feet that were symmetric. On occasion, it was hard to lift his feet or legs. An October 2016 EMG testing showed slowing at the right peroneal and tibial nerves and no potential at the right sural sensory nerve. The findings were compatible with axonal sensorimotor neuropathy due to diabetes. In July 2019, a VA examination was undertaken. The examiner confirmed a diagnosis of diabetic peripheral neuropathy of the lower extremities. The examiner noted bilateral mild constant and intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness as symptoms. Strength in the lower extremities were normal, as were deep tendon reflexes. Sensation to light touch/monofilament testing was noted to be decreased in the ankle/lower leg, as well as the foot and toes. Position sense and vibration sensation were both normal. Sensation to cold was decreased in the lower extremities. There was no evidence of muscle atrophy or trophic changes. The examiner indicated that sciatic nerve involvement and characterized the severity as mild incomplete paralysis. The examiner also indicated that the peroneal and tibial nerves are considered branches of the sciatic nerve. The additional medical documents obtained during the course of the last remand pursuant to the JMR make no mention of the peripheral neuropathy of the lower extremities besides reports of a history of lower extremity neuropathy. VA treatment records continue to note diabetes with neuropathy without description of severity. See, e.g., February 2020 VA podiatry note. The Veteran's right and left sciatic nerve impairment under DC 8620, the Board concludes that a rating greater than 20 percent cannot be awarded under DC 8620 for any period on appeal for either extremity. A higher 40 percent rating would require moderately severe incomplete paralysis of the sciatic nerve. The evidence demonstrates that the Veteran has normal bilateral lower extremity muscle strength and no muscle atrophy of either extremity. Reflexes were diminished in each extremity and absent vibration sensation bilaterally. The Veteran has described his main symptoms as being burning and itching sensations in the soles of his feet. The VA examination reports, and the VA addendum opinion considered the evidence of record and found the Veteran's disability to be mild, incomplete paralysis of the right and left sciatic nerves. The Board finds that a rating higher than 20 percent for either lower extremity is not warranted. There is no showing of moderately severe or severe neurological deficits affecting the lower extremity. While the Veteran is competent to describe pain and burning and itching sensations such symptoms do not warrant a higher rating here. For all the foregoing reasons, the preponderance of the evidence is against a rating in excess of 20 percent at any time for either extremity. As such, a higher rating than 20 percent for right and left lower extremities under DC 8620 is not warranted for any period on appeal. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.