Citation Nr: 21042316 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-09 302 DATE: July 12, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II is denied. Entitlement to service connection for bilateral lower extremity diabetic neuropathy, secondary to service-connected diabetes mellitus, type II is granted. Entitlement to service connection for bilateral upper extremity diabetic neuropathy, secondary to service-connected diabetes mellitus, type II is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 19, 2011 is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's diabetes mellitus, type II has manifested as requiring insulin, restricted diet, and regulation of activities; insulin, restricted diet, and regulation of activities, as well as 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; or insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities), as well as 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. 2. The evidence is at least in equipoise as to whether the Veteran has a diagnosis of bilateral upper neuropathy attributable to his service-connected diabetes mellitus, type II. 3. The evidence is at least in equipoise as to whether the Veteran has a diagnosis of bilateral lower neuropathy attributable to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.119 (2009), 4.119 (2021). 2. The criteria for entitlement to bilateral lower extremity diabetic neuropathy have been met. 38 U.S.C. § § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for entitlement to bilateral upper extremity neuropathy have been met. 38 U.S.C. § § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1961 to May 1989. The Veterans diabetes mellitus, type II (diabetes) and bilateral upper and lower extremity neuropathy claims originate from an appeal of a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied entitlement to a disability rating in excess of 20 percent for diabetes; and that denied service connection for bilateral upper and lower extremity neuropathy, claimed a secondary to the service-connected diabetes (neuropathy). The Veteran's TDIU claim originates from a January 2015 VA RO rating decision that denied entitlement to a total disability rating based on individual unemployability (TDIU). In February 2016 the Board of Veterans' Appeals (Board) granted the Veteran's TDIU claim and assigned an effective date of July 19, 2011; the Board remanded the issue of entitlement to TDIU prior to July 19, 2011 for further development. The Veteran's diabetes and neuropathy claims were also remanded at the same time. The Veteran's diabetes, neuropathy, and TDIU claims were most recently before the Board in July 2018, at which time they were remanded again for the issuance of a supplemental statement of the case (SSOC) by the RO, consistent with the Board's February 2016 remand directives. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). An SSOC was issued in June 2020, and the Veteran's claims were returned to the Board in July 2020. The Board finds that there has been substantial compliance with its July 2018 remand directives, and adjudication of the Veteran's claims is appropriate. Increased Rating Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent 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. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's diabetes is currently assigned a disability rating of 20 percent. At the time of the claim for an increased rating in September 2009, a disability rating of 20 percent required a showing that the diabetes mellitus required insulin and restricted diet, or oral hypoglycemic agent and restricted diet; a disability rating of 40 percent required a showing that the diabetes mellitus required insulin, restricted diet, and regulation of activities; a disability rating of 60 percent required a showing of insulin, restricted diet, and regulation of activities, as well as 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; and a disability rating of 100 percent required a showing of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities), as well as 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. 38 C.F.R. § 4.119, diagnostic code 7913 (2009). As currently drafted, the rating criteria are identical with the exception that the insulin requirement for disability ratings of 20 percent or higher has been altered to require a showing of one or more daily injections of insulin. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2021). In February 2009, the Veteran reported to VA treating providers that he was unable to exercise as much as he previously had due his gout; neither the Veteran nor his treating providers referenced his diabetes as an obstacle to exercise. At an October 2009 VA examination the Veteran denied a history of hospitalization for hypoglycemic reaction or ketoacidosis. The October 2009 examiner documented no restrictions on the Veteran's ability to perform strenuous activities. In February 2011, VA treating providers counseled the Veteran on the importance of exercise in managing his diabetes. In February 2012 the Veteran reported to VA treating providers that he was exercising on a treadmill every third day. In August 2012 the Veteran reported exercising on a treadmill for periods of 45 minutes three days per week. In June 2013 the Veteran reported exercising on his treadmill daily for 30 to 45 minutes. In August 2013 the Veteran attributed exercise limitations to a "bad hip and shoulder"; neither the Veteran nor his treating providers referenced his diabetes as an obstacle to exercise. In May 2014 VA treating providers again counseled the Veteran on the importance of exercise in managing his diabetes. In August 2016 a VA examiner documented that the Veteran's diabetes was managed by insulin and restricted diet; had resulted in fewer than 2 visits per month to a care provider for ketoacidosis and no episodes of hospitalization; and no weight or strength loss. The examiner did not document any restrictions on activities. In December 2019 a VA examiner documented that the Veteran's diabetes required one or more injections of insulin each day but did not require regulation of activities. The examiner documented fewer than 2 visits per month to a care provider for ketoacidosis and no episodes of hospitalization and no weight or strength loss. The Board acknowledges the Veteran's September 2014 hearing testimony, at which time he described "a big swing between hypo and hyper glycemia" when performing activities such as cutting the grass. However, the Board does not find that this any treating provider has advised the Veteran to regulate his activities to control his diabetes. The Veteran also testified as to difficulties associated with finding places to inject himself with insulin while out with family and friends, and to the challenge of finding places to have dinner out with friends that are consistent with his dietary needs. However, the Board finds that these manifestations of the Veteran's diabetes symptoms are contemplated by the 20 percent rating criteria. The Board also acknowledges that, as discussed below, the Veteran is service connected for diabetic neuropathy. Complications that would be compensable if separately evaluated are an element of the 100 percent rating. 38 C.F.R. § 4.119 (2009), 38 C.F.R. § 4.119 (2021). However, as the 100 percent rating rests on a showing of compensable complications if separately evaluated, the Board concludes that, as the Veteran is being compensated for his diabetic neuropathy, using that complications as the basis for a rating in excess of 20 percent for diabetes is precluded as a matter of law. 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. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of an evaluation in excess of 20 percent for the Veteran's diabetes mellitus, type II; thus, there is no question to resolve and the lower rating is appropriate. Id. In light of the foregoing, a grant of a disability rating in excess of 20 percent for diabetes mellitus, type II for the period on appeal is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.119 (2009), 4.119 (2021). Service Connection Entitlement to service connection for bilateral upper and lower extremity diabetic neuropathy is granted In his September 2009 claim, the Veteran asserted that he suffers from bilateral upper and lower peripheral neuropathy as a result of his service-connected diabetes. To establish secondary service connection, a claimant must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. As discussed further below, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a diagnosis of bilateral upper and lower peripheral neuropathy attributable to his service-connected diabetes mellitus, type II. The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. A March 2007 VA treatment note reflects the Veteran's complaint of intermittent numbness to his bilateral hands. Associated notes reflect discussion between his treating providers as to whether the complaint was attributable to medication used to treat his Hepatitis C. Treating providers at the time concluded that the Veteran's complaints were most likely manifestations of diabetic neuropathy. In October 2009, diagnostic testing of the Veteran's bilateral upper and lower extremities was performed in relation to his claim. The provider who performed the testing characterized the findings as "suggestive of a mild patchy peripheral neuropathy" that was "likely related to the patient's diabetes or gout." However, the examiner who provided the final opinion nonetheless documented that there was no diagnosis of neurologic disease. In October 2012 a VA examiner again performed nerve conduction studies of the Veteran's lower extremity neuropathy. The examiner opined that the Veteran's lower extremity neuropathy was most likely due to the Veteran's plantar fasciitis, bunions, and/or gouty attacks. The examiner did not perform a nerve conduction study of the Veteran's upper extremities, stating that "one cannot develop generalized peripheral neuropathy affecting the upper extremities before developing one affecting the lower extremities." The basis for this decision is currently unclear to the Board, as the examination report reflects the Veteran's complaint of intermittent tingling in his hands. The examiner characterized the history of the claimed neuropathies as having begun at the start of treatment for Hepatitis C and having "largely resolved with conclusion of treatment." In a November 2012 addendum opinion, the examiner attributed the Veteran's neuropathy complaints to carpal tunnel syndrome and tarsal tunnel syndrome on the basis of improvements in the nerve conduction study results since time of the prior testing in 2009. In September 2013 a VA examiner opined that the Veteran's carpal tunnel and tarsal tunnel syndromes were less likely than not to have been caused or aggravated beyond their natural progression by the Veteran's diabetes mellitus, type II. This examiner also referenced the Veteran's history of treatment for Hepatitis C and stated that such treatment could "aggravate symptoms of [carpal tunnel syndrome] and tarsal tunnel syndrome." In August 2014, the Veteran submitted a statement from his VA treating provider, reflecting that provider's opinion that his peripheral neuropathy of the bilateral upper and lower extremities was more likely than not the result of his diabetes mellitus. A May 2015 VA examiner stated that the Veteran had no diagnosis of peripheral neuropathy. An August 2016 VA examiner opined that the Veteran's neuropathy was not diabetic in nature. VA treatment notes dated September 2016, September 2017, January 2018, September 2018, and March 2019 reflect that the Veteran's treating providers continued to characterize and treat his neuropathy complaints as diabetic neuropathy. The Board assigns particular probative weight to the opinion of treating providers familiar with the Veteran, his medical history, and his presentation over time. In November 2019 a VA examiner completed a Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire (DBQ) and stated that the Veteran did not have bilateral upper and lower extremity diabetic neuropathy, on the basis of nerve conduction studies performed in October 2009 and May 2015. However, the same examiner completed a diabetes mellitus DBQ in December 2019, at which time they stated that the Veteran had diabetic peripheral neuropathy. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's claimed bilateral upper and lower extremity neuropathies are the result of his service-connected diabetes mellitus. Accordingly, the Board finds that the criteria for service connection for bilateral upper and lower extremity diabetic peripheral neuropathy, proximately due to service-connected diabetes mellitus, type II have been met. 38 U.S.C. § § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). The claim is therefore granted. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 19, 2011 is remanded. As discussed above, the Veteran has been granted service connection for bilateral upper and lower extremity diabetic neuropathy on the basis of his September 2009 claim. The Veteran has a right to one review on appeal. 38 U.S.C. § 7104(a). The TDIU claim has not yet been adjudicated in the first instance in light of the grant of service connection for bilateral upper and lower extremity diabetic neuropathy. Accordingly, the Board concludes that the Veteran's TDIU claim should be remanded for adjudication consistent with the instant decision as to the bilateral upper and lower extremity diabetic neuropathy claims. (Continued on the next page) The matters are REMANDED for the following action: Readjudicate the Veteran's claim to a total disability rating based on individual unemployability (TDIU) prior to July 19, 2011. If the benefits sought remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.