Citation Nr: 22016756 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 15-02 928 DATE: March 23, 2022 ORDER Service connection for hypertension is granted. A 20 percent rating, but no higher, effective May 7, 2014, for left upper extremity peripheral neuropathy is granted. A 30 percent rating, but no higher, effective May 7, 2014, for right upper extremity peripheral neuropathy is granted. The claim of entitlement to a rating higher than 20 percent for left lower extremity peripheral neuropathy is denied. The claim of entitlement to a rating higher than 20 percent for right lower extremity peripheral neuropathy is denied. The claim of entitlement to a rating higher than 20 percent prior to May 7, 2014, and higher than 40 percent thereafter, for diabetes is denied. FINDINGS OF FACT 1. The Veteran's hypertension is related to his diabetes. 2. At a May 7, 2014, private assessment, the Veteran's left upper extremity peripheral neuropathy was moderate. His left extremity is not his dominant side. 3. At the May 2014 private assessment, his right upper extremity peripheral neuropathy was moderate. He is right-handed. 4. The Veteran's left lower extremity peripheral neuropathy has manifested as moderate for the entire period on appeal. 5. His right lower extremity peripheral neuropathy has manifested as moderate for the entire period on appeal. 6. Prior to May 7, 2014, the Veteran's diabetes did not require regulation of activities. After May 7, 2014, he has not been shown to have had episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, or additional complications of diabetes that are not separably compensable. CONCLUSIONS OF LAW 1. The criteria are met for service connection for hypertension. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria are met for a 20 percent rating for left upper extremity peripheral neuropathy effective May 7, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, DC 8515. 3. The criteria are met for a 30 percent rating for right upper extremity peripheral neuropathy effective May 7, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, DC 8515. 4. The criteria are not met for a rating higher than 20 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.124a, DC 8520. 5. The criteria are not met for a rating higher than 20 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.124a, DC 8520. 6. The criteria are not met for a rating higher than 20 percent prior to May 7, 2014, and higher than 40 percent thereafter, for diabetes. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, DC 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to March 1968. This appeal is from an October 2013 rating decision. In July 2018, the Veteran had a hearing with the undersigned VLJ. Following the issuance of the July 2020 supplemental statement of the case (SSOC), the Veteran requested another hearing, which was scheduled in February 2022 again before the undersigned. The representative sought to proceed with this second hearing without the Veteran present. Without the Veteran present, a second hearing was not warranted and relevant law and regulations do not provide for second hearings without the Veteran in attendance. The Board notes that the record contains a recent privacy request, seeking a transcript from the February 2022 hearing, but, as there was no hearing regarding the issues in this decision, this decision may be issued before that request has been fulfilled. In January 2022 and February 2021, the Veteran's attorney requested a copy of "the examiner's" personnel file or curriculum vitae so that she could challenge his competency to provide the examination. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). However, she did not specify which examination she was referring to, nor did she provide any specific contentions as to why she was questioning the competency of any of the VA examiners. Although there is no presumption of competence for VA examiners, a claimant must challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. Id. Without an initial proffer on the part of the Veteran showing or suggesting a specific VA examiner's incompetency, the Board cannot determine which examiner that this request pertains to and the Board finds that a general request regarding all examinations without indication that it is responsive to the evidence in this appeal to be ineffective. SERVICE CONNECTION 1. Service connection for hypertension is granted. Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The record shows the Veteran is diagnosed with hypertension. He also is service-connected for diabetes. The remaining issue is whether there is a relationship between the two. Here, the record persuasively shows that his hypertension is related to his diabetes. The May 2008 VA examiner indicated that hypertension was not a complication of diabetes because he did not have renal dysfunction. The September 2009 VA examiner agreed that the Veteran's hypertension was not a complication of his diabetes because he had no nephropathy. However, the examiner also noted that diabetes is known to accelerate vascular disease, and that the Veteran's hypertension has increased in severity such that his medication has increased. He indicated that it would be speculative to indicate the degree to which diabetes increased his hypertension versus the natural progression of the disability or other comorbidities. The March 2013 VA examiner also indicated that hypertension had been aggravated by diabetes, noting that the Veteran was taking additional medication (clonidine) for hypertension since the 2009 examination. Finally, the December 2019 VA examiner opined that it was at least as likely as not that hypertension was aggravated by diabetes. The Veteran's private treatment records show hypertension was diagnosed in approximately 2003 or 2004. He was prescribed lisinopril in July 2005. VA treatment records show he was still prescribed, in August 2006, lisinopril. In February 2007, lisinopril was changed to felodipine. In August 2007, he was prescribed amlodipine and benazepril. In July 2009, he was prescribed losartan potassium, hydrochlorothiazide, and amlodipine. At the March 2013 VA examination, he was taking clonidine, losartan potassium, hydrochlorothiazide, and amlodipine. This evidence confirms that the Veteran's prescribed medication has increased in the number of medications since originally diagnosed. The September 2009 and March 2013 VA examiners both indicated that an increase in medication indicated an increase in severity. The March 2013 VA examiner opined that this increase in severity was beyond the normal progression of the disability and that hypertension was aggravated by diabetes, which the December 2019 VA examiner also found. Accordingly, service connection for hypertension secondary to diabetes is granted. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Consistent with the facts, separate evaluations may be assigned for separate periods of time based on the facts foundthat is, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Indeed, many of the Veteran's disability ratings have been staged. 2. A 20 percent rating, but no higher, effective May 7, 2014, for left upper extremity peripheral neuropathy is granted. 3. A 30 percent rating, but no higher, effective May 7, 2014, for right upper extremity peripheral neuropathy is granted. The Veteran's left and right upper extremity peripheral neuropathy is rated under DC 8515 for each side, which pertains to complete and incomplete paralysis of the median nerve. 38 C.F.R. § 4.124a. Mild incomplete paralysis warrants a 10 percent rating for both the major and minor sides; moderate warrants a 30 percent rating for the major side and a 20 percent rating for the minor side; and, severe incomplete paralysis warrants a 50 percent rating for the major side and a 40 percent rating for the minor side. Complete paralysis warrants a 70 percent rating for the major side and 60 percent rating for the minor side. Complete paralysis is shown when the hand is inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. Id., DC 8515. A note prior to the rating criteria pertaining to diseases of the peripheral nerves, which contains DC 8515, explains that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. Id. Disability ratings with respect to neurological conditions are ordinarily rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. Id. Special consideration is given to complete or partial loss of use of one or more extremities. 38 C.F.R. § 4.124a. The record shows the Veteran's right hand is his dominant hand, therefore his right arm is his major upper extremity and the left arm is the minor upper extremity. Currently, the left and right upper extremities are each rated 10 percent as mild under DC 8515. After review of the evidence, the Board finds that a higher rating to moderate is warranted for each upper extremity. At a May 7, 2014, private medical assessment, the examiner indicated that the Veteran's diabetes caused moderate (as opposed to mild or severe) upper extremity peripheral neuropathy in both upper extremities, with a glove distribution of pain and numbness. Testing of muscle strength and reflexes was not conducted, but the examiner's description of the symptoms and opinion on their severity is probative, and shows that higher ratings are warranted. Accordingly, a 20 percent rating for left and 30 percent rating for right upper extremity peripheral neuropathies is granted effective May 7, 2014. A higher rating is not warranted any earlier. Prior to the May 2014 assessment, the March 2013 VA examination does not show any constant pain or intermittent pain. He did not have paresthesias and/or dysesthesias, but did have mild numbness in both upper extremities. He had normal muscle strength and normal reflexes for both upper extremities. This evidence corresponds to mild incomplete paralysis of the median nerve in both the upper extremities. The evidence also does not show that either upper extremity manifested as severe incomplete paralysis of the median nerve after May 2014, or at any time during the appeal period. At the December 2019 VA examination, he complained of pain in the hands, sometimes having cramps. The report shows no constant pain, and only mild intermittent pain. He had decreased sensation in the hand and fingers, and decreased sensation to cold. His muscle strength and reflexes were normal. His symptoms are wholly sensory in the upper extremities, and do not warrant higher than a rating for moderate. The Board notes that a general objection was raised regarding the VA examinations of record, but that no specific assertions regarding the December 2019 VA peripheral nerves examination were received. The Board finds the examination report is adequate for adjudication as it was based on a review of the record and an in-person examination. In sum, higher ratings for each the left and right upper extremity are granted, to 20 percent and 30 percent respectively, effective from May 7, 2014. A higher rating prior to that is denied. Ratings based on "severe" incomplete paralysis are not warranted. 4. The claim of entitlement to a higher rating for left lower extremity peripheral neuropathy is denied. 5. The claim of entitlement to a higher rating for right lower extremity peripheral neuropathy is denied. The Veteran's right and left lower extremity radiculopathy are rated under DC 8520, which pertains to complete and incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under this DC, mild incomplete paralysis warrants a 10 percent rating; moderate warrants a 20 percent rating; moderately severe warrants a 40 percent rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Complete paralysis warrants an 80 percent rating, and is shown when the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexions of the knee is weakened or (very rarely) lost. Id., DC 8520. Each his left and right lower extremity is rated 20 percent disabling for the entire period on appeal. As discussed above, a note prior DC 8520 explains that "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis. When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. Id. After review of the record, the Board does not find that higher ratings are warranted for either lower extremity. At the March 2013 VA examination, the examiner opined that both the left and right are moderate in severity. He had moderate intermittent pain and mild numbness. His muscle strength was reduced to 4/5 for bilateral knee flexion, and his left also showed 4/5 muscle strength in left ankle dorsiflexion. His reflexes were reduced to 1+ in the bilateral knee and ankle. His sensation was decreased in the feet. This evidence corresponds to moderate for both lower extremities. The Board acknowledges his reduced muscle strength in both knees and the left ankle, and the reduced reflexes, and that his symptoms are not wholly sensory. However, he still has muscle strength, the 4/5 signifies less than normal strength. He did not have atrophy. Similarly, his reflexes are decreased, but not absent. The Board does not find that the non-sensory symptoms are significant enough to warrant a higher rating based on this evidence. Similarly, the December 2019 VA examiner opined that both lower extremities were moderate in severity. He had moderate intermittent pain and mild numbness. His muscle strength was normal, but his reflexes were reduced in bilateral ankle to 1+, which shows he still had ankle reflexes. The Board finds this evidence also corresponds with his current ratings for moderate incomplete paralysis of the sciatic nerve both lower extremities. As above, the Board finds the December 2019 VA examination adequate, and notes that no specific arguments have been raised regarding its adequacy. In sum, the Board does not find that ratings higher than 20 percent are warranted for either the left or right lower extremity. 6. The claim of entitlement to a higher rating for diabetes is denied. The Veteran's diabetes is rated 20 percent disabling prior to May 7, 2014, and higher than 40 percent thereafter, under DC 7913. 38 C.F.R. § 4.119. Under this DC, a 20 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring one or more daily injection of insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring one or more daily injection of insulin, restricted diet, and regulation of activities, and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated. A maximum rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin; a restricted diet; and regulation of activities (avoidance of strenuous occupational and recreational activities); and, involving 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. Id. After review of the record, the Board does not find that a higher rating is warranted prior to May 2014, or thereafter. Prior to May 2014, the record does not show the Veteran had to regulate his activities because of his diabetes, and he has not so alleged. Regulation of activities is required for the next higher rating for diabetes. Comacho v. Nicholson, 21 Vet. App. 360, 364 (2007). At the May 7, 2014, private assessment, the Veteran was noted to be required to regulate his activities, which is the basis of his 40 percent rating. For a higher rating, his diabetes must involve episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month, plus complications that would not be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. The record does not show hospitalizations due to ketoacidosis or hypoglycemic reactions, or that he must visit his diabetic care provider twice per month for any reason. The record does not show other complications of diabetes that would not be compensable if separately evaluated. Accordingly, higher ratings are not warranted prior to or after May 7, 2014. The Board notes the Veteran has generally alleged the VA examinations obtained in conjunction with this appeal are inadequate, but he has not set forth any specific allegations regarding the December 2019 VA examination. The Board finds the examination is adequate for adjudication as it was based on a review of the records and an in-person examination. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.