Citation Nr: 22010230 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 17-45 142 DATE: February 22, 2022 ORDER A higher rating in excess of 20 percent for service-connected diabetes mellitus type II is denied. A higher rating in excess of 10 percent prior to December 17, 2021, and in excess of 20 percent thereafter, for service-connected peripheral neuropathy of the left lower is denied. A higher rating in excess of 10 percent prior to December 17, 2021, and in excess of 20 percent thereafter for service-connected peripheral neuropathy of the right lower extremity is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's diabetes mellitus type II has only required restricted diet, insulin treatment, and hypoglycemic agents without restriction of regulation of activities. 2. Prior to December 17, 2021, the Veteran's peripheral neuropathy manifested by no worse than mild incomplete paralysis of the lower extremities. 3. From December 17, 2021, the Veteran's peripheral neuropathy has manifested by no worse than moderate incomplete paralysis of the lower extremities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus type II are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for a higher rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to December 17, 2021, and in excess of 20 percent, thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for a higher rating in excess of 10 percent for peripheral neuropathy of the right lower extremity prior to December 17, 2021, and in excess of 20 percent, thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to June 1967. The case is on appeal from a February 2016 rating decision. In September 2021, the Veteran testified at a Board hearing. In December 2021, the Board remanded the issue of a higher rating in excess of 20 percent for diabetes mellitus type II. The Board also assumed jurisdiction of the issue of increased evaluations for the Veteran's bilateral diabetic peripheral neuropathy as part of his increase rating claim for diabetes mellitus and remanded it for further development. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 1. A higher rating in excess of 20 percent for service-connected diabetes mellitus type II. Specific Legal Criteria The Veteran's diabetes mellitus type II is rated under 38 C.F.R. § 4.119, DC 7913. Under these rating criteria: A 10 percent is warranted for diabetes mellitus manageable with restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (defined within the DC as avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Analysis The Veteran contends that the currently assigned 20 percent rating does not compensate for the severity of his diabetes mellitus type II. Thus, the question for the Board is whether the evidence reflects that the Veteran's diabetes mellitus has required one or more daily injections of insulin, restricted diet, and regulation of activities at any time throughout the appeal period. The Veteran was afforded a VA examination in November 2015 in connection with his increase rating claim. The VA examiner indicated that the Veteran's diabetes mellitus is managed by insulin once a day, restricted diet, and an oral hypoglycemic agent. The VA examiner further noted that the Veteran's disability does not require any regulation of activities and that the Veteran does not have any complications due to his diabetes. In fact, the VA examiner noted that part of the Veteran's treatment included running and biking. In light of the foregoing, in the February 2016 rating decision on appeal, the RO confirmed and continued the previously assigned 20 percent rating. The Veteran was afforded a subsequent VA examination in January 2018. The VA examiner indicated that the Veteran's diabetes mellitus is managed by more than one injection of insulin per day, restricted diet and an oral hypoglycemic agent. The examiner further noted that the Veteran does not have any complications due to his diabetes. While the examination report notes that the Veteran requires regulation of activities, these were described as "eat more on the days with a lot of activities." In the December 2021 remand, the Board noted that the example provided by the examiner for the regulation of activities did not seem to refer to avoidance of strenuous occupational and recreational activities. See 38 C.F.R. § 4.119, DC 7913. Pursuant to the Board's remand, the Veteran was afforded a VA examination in December 2021. Again, the VA examiner indicated that the Veteran's diabetes mellitus is managed by insulin more than once a day, restricted diet and an oral hypoglycemic agent. The VA examiner further noted that the Veteran's disability does not require any regulation of activities. VA treatment records corresponding to the appeal period in question, that is, records dated since October 27, 2015 after consideration of the one-year look back period prior to the filing of the increase rating claim (see Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010)), shows that the Veteran's diabetes mellitus has been managed by insulin and oral hypoglycemics (see October 2015 and March 2018 progress notes); and restricted diet (see September 2016, January 2018, and December 2021 progress notes). A March 17, 2016 VA progress note reflects that the Veteran has been restricted from activities; however, due to back issues and not due to his diabetes mellitus. In fact, the Veteran has been prompted to exercise at least 30 minutes a day, five days a week (see September 8, 2016 progress notes); and to exercise regularly (see August 24, 2017 progress notes). In June 2019, the Veteran reported doing good and that he was back to full activities to include lifting weights (see June 7, 2019 progress notes); and that he was able to do heavy housework such as scrubbing floors (see March 19, 2021 progress notes). In December 2021, the Veteran was instructed to walk more if he was able to. See December 1, 2021 progress notes. Private treatment records from Body Mind Weight Loss received in March 2016, reflect that the Veteran was under a nutrition plan. The records include a statement which indicates that the veteran was also under an exercise plan to be performed daily. The Board finds that here, the evidence unequivocally shows that, for the entire appeal period the Veteran's diabetes has only required one or more daily injections of insulin, an oral hypoglycemic agent and restricted diet which is the required criteria for a 20 percent rating. His diabetes mellitus has not required regulation of activities to meet the required criteria for a higher 40 percent rating. See 38 C.F.R. § 4.119, DC 7913. The rating criteria for evaluating diabetes mellitus are conjunctive and successive in nature. Additionally, the term "regulation of activities," a requirement for a higher 40 percent rating, means that a claimant must have a "medical need" to avoid strenuous occupational and recreational activities. See Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Medical evidence is required to show that occupational and recreational activities have been restricted. Id. at 364. Here, VA examination reports and VA and private treatment records do not reflect that the Veteran's activities are regulated due to his diabetes mellitus. On the contrary, physical activity (i.e., exercise) has been consistently recommended by his VA and private providers. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a higher rating in excess of 20 percent for service-connected diabetes mellitus is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A higher rating in excess of 10 percent prior to December 17, 2021, and in excess of 20 percent thereafter for peripheral neuropathy of the left lower extremity. 3. A higher rating in excess of 10 percent prior to December 17, 2021, and in excess of 20 percent thereafter for peripheral neuropathy of the right lower extremity. Specific Legal Criteria The Veteran's diabetic peripheral neuropathy is rated under 38 C.F.R. § 4.124a, DC 8520, which pertains to the sciatic nerve. The DC provides: A 10 percent rating for mild incomplete paralysis; A 20 percent rating for moderate incomplete paralysis; A 40 percent rating for moderately severe incomplete paralysis; and A 60 percent rating for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. "Mild" is "gentle in nature or behavior." www.merriam-webster.com/dictionary/ mild. "Moderate" is "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate. "Severe" is "of a great degree." www.merriam-webster.com/dictionary/severe. Analysis By way of background, the RO initially granted service connection for peripheral neuropathy of the bilateral lower extremities in March 2018 and assigned 10 percent ratings for each as of November 28, 2017, date on which his claim of service connection was received. As previously noted, in the December 2021 decision, the Board remanded the present matter for further development and adjudication as part of the Veteran's increase claim for diabetes mellitus. In a December 2021 rating decision, the RO increased the Veteran's bilateral peripheral neuropathy from a 10 percent rating, to a 20 percent rating for each lower extremity effective December 17, 2021. Such action created the staged ratings to be addressed. Thus, the question for the Board is whether the evidence supports a higher rating in excess of 10 percent for bilateral peripheral neuropathy prior to December 17, 2021, and in excess of 20 percent thereafter. The Veteran was first afforded a VA peripheral neuropathy examination in January 2018. He reported that his peripheral neuropathy started "3 months ago," (i.e., November 2017), when he began experiencing numbness and tingling on his legs, especially during the night. The Veteran denied constant or intermittent pain of the lower extremities. The Veteran reported paresthesias and numbness of his lower extremities. The examiner concluded that the Veteran has incomplete paralysis of the sciatic nerve, which was mild in both lower extremities. During his September 2021 Board hearing, the Veteran testified that he is having "hard problems" with his diabetes-related neuropathy in both legs as the condition interferes with his walking, which in turn causes him to get tired. In its December 2021 decision, the Board remanded the present matter for a new VA examination to ascertain the actual level of severity of the Veteran's disability. Pursuant to the Board's remand, the Veteran was afforded a new VA examination December 2021. The Veteran confirmed the onset of his disability in 2017. He reported that the condition has progressively worsened since its original onset date with current symptoms such as "pin and needles feeling, numbness and tingling." The VA examiner described the Veteran's symptoms as intermittent pain, paresthesias, and numbness of both lower extremities, which are moderate. The examiner also noted that the Veteran has decreased light touch feeling on his feet and toes and decreased cold sensation on both lower extremities. In sum, the examiner concluded that the Veteran has incomplete paralysis of the sciatic nerve, which is moderate in both lower extremities. VA treatment records show that in April 2018, the Veteran underwent an EMG which revealed peripheral neuropathy. See April 8, 2018 progress notes. Shortly thereafter, the Veteran reported that he did not have to take his prescribed medication daily as his numbness on both feet was "on and off." See May 24, 2018 progress notes. An October 2018 prosthetics note shows that the Veteran had diminished gross sensation on his feet bilaterally. See October 16, 2018 progress notes. A March 2019 podiatric note shows that the Veteran presented to the clinic in normal shoe gear. The provider noted that his gross sensations were intact in both feet. See March 27, 2019 progress notes; see also August 29, 2019, January 14, 2020, and July 29, 2020, podiatry progress notes. In November 2020, the Veteran reported pain about the left heel that it is most severe during his first steps in the morning and then decreases through the day. Pain can escalate to 10 out of 10. The provider noted that the Veteran has been using cushion insole shoes and rubbing his heel to manage the pain. Nonetheless, the examiner reiterated that his gross and protective sensations remained normal. See November 2, 2020 podiatry progress notes. Thereafter, in August 2021, the Veteran reported pain about the great toe joints bilaterally with increased weight bearing and ambulation. The provider noted that pain can be moderate to severe from 6 to 8 out of 10. See August 3, 2021 podiatry progress notes. After careful review of the evidence, the Board determines that the Veteran's right and left lower extremity peripheral neuropathy more closely approximated mild incomplete paralysis of the affected nerve for the period prior to December 17, 2021, and moderate incomplete paralysis of the affected nerve for the period thereafter. This is consistent with the dictionary definitions of the terms. As noted above, prior to December 17, 2021, the Veteran endorsed some numbness on both feet which he described as on and off. As also noted above, his VA providers indicated on multiple occasions that while he had some numbness on his feet bilaterally, his sensations remained essentially normal and intact. See VA progress notes dated from March 27, 2019, to July 29, 2020. Additionally, while the Veteran began to complain of some feet pain in November 2020, there is still insufficient evidence to show that the severity of his disability was moderate in nature, particularly when there is no evidence of involvement of both the sciatic and femoral nerves. In light of the foregoing, the Board finds that the assessment provided by the January 2018 VA examiner accurately resembles the severity of his bilateral peripheral neuropathy of the lower extremities prior to December 17, 2021. With respect to the period from December 17, 2021, the December 2021 VA examiner found that sensation in each lower extremity was decreased, as well as intermittent pain, paresthesias, and numbness of both lower extremities. While the examiner found that the femoral nerves were not involved, he nevertheless graded the Veteran's right and left peripheral neuropathy with involvement of the sciatic nerve as moderate in severity. In light of the foregoing, and while the Veteran reported some severe feet pain, the Board finds that the disability picture as a whole is primarily manifested by pain and other symptoms consistent with a moderate disability level as concluded by the December 2021 VA examiner. This is turn is consistent with the currently assigned 20 percent rating. The December 2021 VA examination is the most probative evidence of record with respect the effective date for the increased rating. Swain, 27 Vet. App. at 224; DeLisio, 25 Vet. App. at 56. That is the date that, after consideration of the evidence of record the RO determined, and the Board agrees, that an increase in severity in this case was factually ascertainable. See McGrath, 14 Vet. App. at 35-36. In sum, the Board finds that the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and higher ratings in excess of 10 percent for service-connected peripheral neuropathy of the lower extremities prior to December 17, 2021, and in excess of a 20 percent thereafter are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.