Citation Nr: 21040423 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-04 961A DATE: July 3, 2021 ORDER Prior to August 18, 2011, an initial rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy (femoral) is denied. Prior to August 18, 2011, an initial rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy (femoral) is denied. From August 18, 2011, a disability rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy (femoral) is denied. From August 18, 2011, a disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy (femoral) is denied. FINDINGS OF FACT 1. Prior to August 18, 2011, the Veteran's right lower extremity diabetic peripheral neuropathy (femoral) more nearly approximated mild incomplete paralysis. It did not approximate moderate incomplete paralysis. 2. Prior to August 18, 2011, the Veteran's left lower extremity diabetic peripheral neuropathy (femoral) more nearly approximated mild incomplete paralysis. It did not approximate moderate incomplete paralysis. 3. From August 18, 2011, the Veteran's right lower extremity diabetic peripheral neuropathy (femoral) more nearly approximated moderate incomplete paralysis. It did not approximate severe incomplete paralysis. 4. From August 18, 2011, the Veteran's left lower extremity diabetic peripheral neuropathy (femoral) more nearly approximated moderate incomplete paralysis. It did not approximate severe incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to August 18, 2011, the criteria are not met for an initial rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy (femoral). 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8526. 2. Prior to August 18, 2011, the criteria are not met for an initial rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy (femoral). 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8526. 3. From August 18, 2011, the criteria are not met for a disability rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy (femoral). 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8526. 4. From August 18, 2011, the criteria are not met for a disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy (femoral). 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This claim has a long and complicated procedural history, originally stemming from the Veteran's claim for service connection for diabetes. The Board will attempt to condense and summarize the Veteran's claim to provide better context for his bilateral diabetic peripheral neuropathy (femoral) claims. In June 2008, the Veteran filed a claim for service connection for diabetes mellitus type II. In a March 2009 rating decision, this claim was granted, and his diabetes was rated at 20 percent effective June 25, 2007. A decision on the residuals of the Veteran's diabetes was deferred until after he had a VA examination. In a May 2009 rating decision, the RO increased the Veteran's service-connected diabetes from 20 percent to 40 percent, effective April 21, 2009, the date of his examination. Service connection for residuals of diabetes mellitus type II, to include peripheral arterial disease of the left lower extremity, was granted and rated at 40 percent effective April 21, 2009. In December 2009, the Veteran disagreed with the May 2009 rating decision. In an August 2010 rating decision, the Veteran was granted service connected for diabetic peripheral neuropathy of the right and left lower extremities (sciatic), evaluated at 10 percent effective July 23, 2009. This was the date of the VA Medical Center (VAMC) treatment record that first noted that the Veteran had objective neurological symptoms of diabetic peripheral neuropathy. In August 2011, the Veteran filed an increased rating claim for his service-connected bilateral lower extremity diabetic peripheral neuropathy (sciatic). In a December 2011 rating decision, the 10 percent ratings for the Veteran's bilateral lower extremity diabetic peripheral neuropathy were continued. Eventually, in a June 2017 VA Form 9, the Veteran perfected his appeal and requested a hearing. In a July 2019 rating decision, for the first time, the Veteran was granted service connection for diabetic peripheral neuropathy of the right and left lower extremities (femoral), evaluated as 20 percent disabling, effective March 28, 2019, the date of his most recent VA examination. In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. In a February 2021 decision, the Board resolved all of the Veteran's claims for diabetic peripheral neuropathy of the sciatic nerves and remanded the issues of diabetic peripheral neuropathy of the femoral nerves for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). In a March 2021 rating decision, the RO granted initial 10 percent ratings for right and left lower extremity diabetic peripheral neuropathy (femoral) effective July 23, 2009, and 20 percent ratings effective August 18, 2011. As this does not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The claims are once again before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 1. Prior to August 18, 2011, an initial rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy (femoral) 2. Prior to August 18, 2011, an initial rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy (femoral) 3. From August 18, 2011, a disability rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy (femoral) 4. From August 18, 2011, a disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy (femoral) As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Legal Criteria Under DC 8526, for paralysis of the femoral nerve, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A 20 percent rating is assigned for moderate incomplete paralysis of the femoral nerve. Id. A 30 percent rating is assigned for severe incomplete paralysis of the femoral nerve. Id. The maximum 40 percent rating is assigned for complete paralysis of the femoral nerve, characterized by paralysis of quadriceps extensor muscles. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the 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. Id. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Factual Background The Veteran's bilateral lower extremity diabetic peripheral neuropathy (femoral) is rated 10 percent effective July 23, 2009 and 20 percent effective August 18, 2011 under 38 C.F.R. § 4.124a, DC 8526. In a July 2009 VA treatment report, the Veteran's foot sensory examination showed abnormal findings that he was partially insensate. He was diagnosed with diabetic neuropathy and placed on medication. An October 2009 electromyography (EMG) showed evidence of a bilateral lower extremity demyelinating sensory polyneuropathy. In a November 2009 EMG, it was confirmed that the Veteran had sensory polyneuropathy in his bilateral lower extremities. The Board notes that in the November 2011 and July 2016 VA examination reports for diabetic peripheral neuropathy, the Veteran's femoral nerves were not evaluated. In a March 2019 VA examination report, the Veteran's femoral nerves were evaluated for the first time. The Veteran was diagnosed with lower extremity diabetic peripheral neuropathy of the femoral nerves. The examiner reported that the Veteran had moderate incomplete paralysis in his bilateral femoral nerves. In the February 2021 remand, the Board ordered the RO to schedule the Veteran for a VA examination to assist in determining the nature, extent, and severity of his right and left lower extremity diabetic peripheral neuropathy (femoral). Specifically, during that examination, the examiner was ordered to provide a "retrospective" medical opinion from August 18, 2011, the date of the Veteran's original increased rating claim, to the present. In a March 2021 VA examination report, the Veteran was diagnosed with bilateral diabetic peripheral neuropathy of the right and left lower extremities (femoral nerve). The examiner noted that the Veteran was first diagnosed with diabetes mellitus type 2 in 1998. Several years after being diagnosed, he developed numbness and tingling in his feet, and was ultimately diagnosed with diabetic bilateral lower extremity peripheral neuropathy. The date of onset was 2007. The examiner reported that the Veteran's symptoms have gotten progressively worse since then. When tested, the Veteran had moderate constant pain in both his lower extremities, no interment pain, moderate paresthesias and/or dysesthesias in both lower extremities, and moderate numbness in both lower extremities. The Veteran did not have muscle atrophy. The VA examiner characterized the Veteran's diabetic peripheral neuropathy (femoral) as moderate incomplete paralysis in both lower extremities. The VA examiner noted that the Veteran's bilateral lower extremity peripheral neuropathy affected his ability to work. He was unable to perform tasks that required walking or standing for longer than a few minutes at a time due to decreased/diminished sensation and pain in his feet. The VA examiner noted that because the Veteran was able to ambulate on his own, he did not meet the criteria for severe incomplete paralysis of the femoral nerve. As requested in the February 2021 remand, the VA examiner also provided a "retrospective" opinion. After an extremely thorough review of the Veteran's file, the examiner reported that the claims file supported the involvement of the femoral nerve back to 2009, when the Veteran's EMG results showed abnormal polyneuropathy. According to the examiner, the claims file supported the determination that the Veteran's femoral nerve symptoms have progressively gotten worse to being "MODERATE" bilateral femoral nerve involvement. The examiner concluded the "retrospective" opinion by reporting that the Veteran's femoral symptoms started in 2009 as "MILD," but progressed to "MODERATE" symptoms over the past 12 years. The Board notes that throughout the appeal period, the Veteran received medical treatment for his diabetic peripheral neuropathy. These treatment reports did not evaluate the nature, extent, and severity of his peripheral neuropathy disability during the appeal period. While not discussed specifically, the Board has reviewed them and taken them into consideration. Analysis Based on the above evidence, the Board concludes that from July 23, 2009, the date of the VA treatment report showing objective evidence of diabetic neuropathy, an initial rating of 10 percent is warranted for right and left diabetic peripheral neuropathy of the lower extremities (femoral). 38 C.F.R. § 4.124a, DC 8526. Prior to August 18, 2011, the Veteran's bilateral lower extremity diabetic peripheral neuropathy (femoral) more closely approximated "mild" incomplete paralysis. From August 18, 2011, the date of his increased rating claim, the Board determines that a 20 percent rating is warranted for the Veteran's right and left diabetic peripheral neuropathy of the lower extremities (femoral). Id. In the March 2021 VA opinion, the examiner reported that when the Veteran's femoral nerve symptoms first started in 2009, they were "mild." The opinion noted that the Veteran's symptoms worsened to become "moderate" afterwards. At no point during the appeal period did the Veteran's symptoms more closely approximate "severe" incomplete paralysis of the femoral nerve. Id. The Board finds that the July 2009 VA treatment report and the March 2021 VA examination and opinion, describing the Veteran's diabetic peripheral neuropathy (femoral) symptoms, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent (qualified) to observe his diabetic peripheral neuropathy symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable VA diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his bilateral lower extremity diabetic peripheral neuropathy (femoral) disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because of this, prior to August 18, 2011, initial ratings in excess of 10 percent for right and left diabetic peripheral neuropathy of the lower extremities (femoral) are denied. From August 18, 2011, disability ratings in excess of 20 percent are also denied. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The Veteran has not asserted that he was unable to work because of his service-connected disabilities, nor does the record reflect that he could not work because of his service-connected disabilities. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Board is sympathetic to the Veteran's reports and understands that his diabetic peripheral neuropathy disabilities have significant effects on his daily life. However, his symptoms more nearly approximate the assigned ratings noted in this decision. The Board also notes that this decision does not leave the Veteran without recourse. If his disabilities should worsen in the future, he is free to file claims for increased disability ratings at that time. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.