Citation Nr: 22013508 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-11 106 DATE: March 9, 2022 ORDER A disability rating in excess of 10 percent prior to December 17, 2019, and 40 percent thereafter for service-connected peripheral neuropathy of the left lower extremity is denied. A disability rating in excess of 10 percent prior to December 17, 2019, and 40 percent thereafter for service-connected peripheral neuropathy of the right lower extremity is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II with erectile dysfunction (diabetes mellitus) is remanded. FINDINGS OF FACT 1. Prior to December 17, 2019, the Veteran's bilateral peripheral neuropathy of the lower extremities was manifested by, at worst, mild incomplete paralysis of the sciatic nerve. 2. From December 17, 2019, the Veteran's bilateral peripheral neuropathy of the lower extremities has been manifested by, at worst, moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to December 17, 2019, and 40 percent thereafter for service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for a disability rating in excess of 10 percent prior to December 17, 2019, and 40 percent thereafter for service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1968 to August 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 2019, the Board remanded this case for additional development. This resulted in a September 2021 rating decision that increased the disability ratings for the Veteran's service-connected peripheral neuropathy of the right and left extremities from 10 percent to 40 percent, effective December 17, 2019. As the Veteran has not expressed satisfaction with the "staged" increase in the ratings, both "stages" of the ratings remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Finally, it is noted that the Veteran filed a Decision Review Request: Supplemental Claim in October 2020 for the denial of individual unemployability. Because this claim is made under the Appeals Modernization Act (AMA) and the present claim is being adjudicated under the Legacy Appeals system, his claim will be separately adjudicated at a later time. Increased Rating Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. "[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Entitlement to disability ratings in excess of 10 percent prior to December 17, 2019, and 40 percent thereafter for service-connected peripheral neuropathy of the left and right lower extremities The Veteran's peripheral neuropathy of the left and right lower extremities are currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which provides for rating paralysis of the sciatic nerve, manifested by complete paralysis ratable at 80 percent; severe incomplete paralysis with marked muscular atrophy ratable at 60 percent; moderately severe incomplete paralysis ratable at 40 percent; moderate incomplete paralysis ratable at 20 percent; and mild incomplete paralysis ratable at 10 percent. In the Veteran's September 2013 notice of disagreement (NOD) he reported suffering from a lot of pain and having trouble walking at times. A February 2014 VA examination diagnosed the Veteran with diabetic peripheral neuropathy of the bilateral lower extremities. The examiner noted the Veteran was right hand dominant. The Veteran's symptoms included moderate constant pain, moderate constant paresthesias and/or dysesthesias and moderate numbness in the bilateral lower extremities. Neurologically, the Veteran's examination was normal, showing normal strength. However, decreased tendon reflexes were noted as well as decreased light touch. No muscle atrophy was noted, and the Veteran did not have trophic changes attributable to the diabetic peripheral neuropathy. Overall, the examiner found the Veteran suffered from incomplete paralysis of the bilateral lower extremities in the sciatic nerve but normal femoral nerves. Functionally, the Veteran's ability to stand was reduced and he did get uncomfortable during the day. See February 2014 VA examination. In his March 2015 VA Form 9, the Veteran reported experiencing numbness in his feet and legs. A December 2019 VA examination diagnosed the Veteran with diabetes sensory polyneuropathy of the bilateral lower and upper extremities. [Upper extremity diabetes sensory polyneuropathy is not on appeal.] Symptoms of the Veteran's bilateral lower extremity neuropathy included severe intermittent pain, severe paresthesias and/or dysesthesias and numbness. Muscle strength was all normal, but the Veteran had decreased touch in the ankle and feet. Additionally, the Veteran had decreased position sense, and vibration sensation in the lower extremities. There was no muscle atrophy noted but the Veteran did suffer from loss of hair on skin of the distal legs and feet. The skin, however, was noted to be intact and shiny. Overall, the Veteran's lower extremity diabetic peripheral neuropathy resulted in moderately severe incomplete paralysis of the bilateral sciatic nerve and normal femoral nerve. The Veteran did not have any other pertinent physical findings or complications nor did he had any scars associated with his diabetes mellitus. Functionally, the Veteran suffered from tingling and numbness in his feet as well as numbness in his hands which made activities such as walking, yard work, and tying shoes difficult. See December 2019 VA examination. After reviewing the foregoing evidence, the Board finds that the objective medical evidence of record prior to December 17, 2019, shows the Veteran's peripheral neuropathy of the bilateral lower extremities was manifested by mild incomplete paralysis of the sciatic nerve with a normal femoral nerve. As noted, the Veteran's symptoms included moderate constant pain, moderate constant paresthesias and/or dysesthesias and moderate numbness in the bilateral lower extremities but neurologically, the Veteran's examination was normal, showing normal strength. Those findings more closely approximate a mild impairment of peripheral neuropathy of the right and left lower extremities, and do not more closely approximate moderate incomplete paralysis ratable at 20 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Beginning on December 17, 2019, the VA examiner found that overall, the Veteran's lower extremity diabetic peripheral neuropathy resulted in moderately severe incomplete paralysis of the bilateral sciatic nerve and femoral nerve. This finding is consistent with the assigned 40 percent disability rating. However, there is simply no evidence that either the Veteran's right or left lower extremity peripheral neuropathy has been manifested by complete paralysis in order to warrant a higher rating of 80 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Accordingly, the Board finds that the evidence weighs persuasively against a finding that a rating in excess of 10 percent prior to December 17, 2019, and in excess of 40 percent thereafter for peripheral neuropathy of the right and left lower extremities is warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus is remanded. The Veteran is currently assigned a 20 percent rating for his service-connected diabetes mellitus. A 20 percent rating is assigned for diabetes mellitus that requires insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. For the next higher rating of 40 percent to be assigned, it must also be shown that the Veteran's diabetes mellitus requires regulation of activities. See 38 C.F.R. § 4.119, Diagnostic Code 7913 In order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent evaluation)). A review of the December 2019 VA examination report shows the Veteran's diabetes mellitus type II was noted to be treated by restricted diet, prescribed hypoglycemic agents as well as required regulation of activities as part of his medical management of the diabetes mellitus. In particular, it was stated that the Veteran had to avoid strenuous activities as it caused low blood sugars which happened about 3 or 4 times in the last 12 months. However, contrary to the December 2019 VA examiner's findings, subsequent VA treatment records from December 2020 and June 2021 show the Veteran was educated on the importance of diet, exercise, strict blood sugar control and medication compliance. Such treatment records do not reflect the limitation noted by the December 2019 VA examiner that the Veteran should avoid strenuous activities due to his low blood sugars. In fact, they indicate the Veteran was encouraged to exercise as part of the management of his diabetes mellitus. As there is conflicting medical evidence in this regard, the Board finds that prior to adjudicating this claim an addendum opinion is necessary to clarify whether there is actual medical evidence to support the Veteran requiring regulation of activities in both occupational and recreational activities. The matter is REMANDED for the following action: Obtain a medical addendum opinion by an appropriate clinician to clarify whether the Veteran requires regulation of activities for medical reasons in both occupational and recreational activities because of his service-connected diabetes mellitus. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.