Citation Nr: 22016759
Decision Date: 03/23/22	Archive Date: 03/23/22

DOCKET NO. 18-32 377
DATE:  March 23, 2022

ORDER

Entitlement to a rating in excess of 20 percent for type II diabetes mellitus (DM) with diabetic retinopathy, hypertension, and erectile dysfunction is denied.

Entitlement to a compensable rating prior to January 27, 2015, and in excess of 30 percent thereafter, for nephropathy is denied.

Entitlement to a 50 percent rating, but no higher, for peripheral neuropathy (PN), right upper extremity (RUE), is granted. 

Entitlement to a 40 percent rating, but no higher, for PN, left upper extremity (LUE), is granted.

Entitlement to a 40 percent rating, but no higher, for PN, right lower extremity (RLE), is granted.

Entitlement to a 40 percent rating, but no higher, for PN, left lower extremity (LLE), is granted.

FINDINGS OF FACT

1. The Veteran's DM required oral hypoglycemic agent(s) and a restricted diet, but did not require regulation of activities.

2. The Veteran's diabetic retinopathy has not resulted in compensable visual impairment. 

3. The Veteran's hypertension was not manifested by diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more who required continuous medication for control. 

4. The Veteran's erectile dysfunction was not manifested by a penile deformity or impairment analogous to a penile deformity. 

5. Prior to January 27, 2015, the Veteran's renal dysfunction resulted in albumin and casts with history of acute nephritis; or noncompensable hypertension.

6. From January 27, 2015, the Veteran's renal dysfunction resulted in albumin constant or recurring with hyaline and granular casts or red blood cells; transient or slight edema; or hypertension at least 10 percent disabling.

7. Throughout the appeal period, the Veteran's PN, right and left upper extremities, was manifested by symptoms that were severe; and his PN does not present such an exceptional or unusual disability picture as to render the schedular rating criteria inadequate or its application impractical.

8. Throughout the appeal period, the Veteran's PN, right and left lower extremities, was manifested by symptoms that were moderately severe; and his PN does not present such an exceptional or unusual disability picture as to render the schedular rating criteria inadequate or its application impractical.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for DM with diabetic retinopathy, hypertension, and erectile dysfunction have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2020).

2. The criteria for a compensable rating prior to January 27, 2015, and in excess of 30 percent thereafter, for nephropathy have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7541 (2020).

3. The criteria for a rating of 50 percent rating, but no higher, for PN, right upper extremity, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8512 (2020).

4. The criteria for a rating of 40 percent rating, but no higher, for PN, left upper extremity, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8512 (2020).

5. The criteria for a rating of 40 percent rating, but no higher, for PN, right lower extremity, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2020).

6. The criteria for a rating of 40 percent rating, but no higher, for PN, left lower extremity, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from April 1970 to December 1976, and from March 1979 to May 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the VA Regional Office (RO). 

This case was previously before the Board in November 2020, at which time the issues currently on appeal were remanded for additional development. It has since been returned to the Board for further appellate action.

Increased Rating

1. DM with Diabetic Retinopathy, Hypertension, and Erectile Dysfunction

The Veteran has contended that his DM is worse than that contemplated by the currently assigned 20 percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. Specifically, he reported increased meter reading levels and medication dosages, worsening blood pressure and associated headaches, diabetic retinopathy (DR), erectile dysfunction (ED), fatigue, sensitivity to cold, constipation, dry skin, struggle with weight gain, muscle pain, and difficulty reading with his glasses. He claimed that he was being penalized because he did not have to use insulin shots.

In January 2015, the Veteran was afforded VA examination for DM, hypertension, and ED. Regarding his DM, the Veteran reported that he had been working on his diet and getting more exercise to lower his A1C levels. He was prescribed oral hypoglycemic agent(s). He required regulation of his activities. He related that he occasionally felt dizziness, weakened legs, and sweaty when active but taking glucose tabs helped him return to normal. He received diabetic care less than two times per month for episodes of ketoacidosis and hypoglycemia. However, he did not require any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions over the past twelve months. The examiner indicated that the Veteran did not experience any progressive unintentional loss in weight or strength. 

As it pertains to his hypertension, the Veteran reported that his blood pressure remained high even though he took medication and stayed active. His treatment plan included taking continuous medication. He did not have a history of a diastolic blood pressure (BP) elevation to predominantly 100 or more. Upon examination, his current BP readings were 158/84 and 156/83, which averaged at 157/84. There were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the Veteran's hypertension. 

For his ED, the Veteran reported minimal erectile function which he had learned to live with. The examiner indicated that the Veteran was able to achieve an erection sufficient for penetration and ejaculation (with medication). The Veteran added that the ED medication helped most of the time but did not work that well.

In June 2021, the Veteran had VA examinations for DM and DR. Regarding his DM, the Veteran's DM was managed by a restricted diet. He was prescribed oral hypoglycemic agent(s). He did not require regulation of his activities. He received diabetic care less than two times per month for episodes of ketoacidosis and hypoglycemia. He did not require any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions over the past twelve months. The examiner indicated that the Veteran did not experience any progressive unintentional loss in weight or strength. He avoided prolonged sun exposure due to medications that caused him to be sensitive to the sun.

For his DR, the Veteran was diagnosed with mild non proliferative retinopathy of the left eye. The examiner stated that the Veteran did not have retinopathy in his right eye. The examiner noted that the Veteran's retinopathy was stable and well-controlled. The Veteran had mild blurred vision best corrected with glasses. His corrected distance visual acuity was 20/40 or better in both eyes. The examiner concluded that there was no decrease in visual acuity or other visual impairment attributable to the Veteran's diabetic retinopathy.

In November 2021, the Veteran was provided additional VA examinations for DM, hypertension, and ED. Regarding his DM, the Veteran was prescribed oral hypoglycemic agent(s). He did not require regulation of his activities. He received diabetic care less than two times per month for episodes of ketoacidosis and hypoglycemia. He did not require any hospitalizations for episodes of ketoacidosis over the past twelve months. However, the examiner indicated that the Veteran required three of more hospitalizations for episodes of hypoglycemic reactions over the past twelve months. The examiner indicated that the Veteran did not experience any progressive unintentional loss in weight or strength. The examiner remarked that the Veteran had mild diabetic retinopathy and could see clearly with corrective glasses. For the Veteran's ED, the examiner noted that the Veteran had sexual desire but could not sustain an erection. The Veteran had not been sexually active for approximately ten years. The Veteran had tried Viagra with some improvement.

As it pertains to his hypertension, the Veteran reported fatigue from medications, difficulty with prolonged standing and walking, and occasional shortness of breath. His treatment plan included taking continuous medication. He did not have a history of a diastolic BP elevation to predominantly 100 or more. Upon examination, his current BP readings were 148/88, 140/88, and 144/84, which averaged at 144/87. There were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the Veteran's hypertension. 

For his ED, the Veteran reported that he was unable to obtain erection, maintain, or perform penetration. He tried Viagra with minimal to no change. He denied having any deformity or abnormality. 

A review of VA treatment records showed that the Veteran's diabetic, hypertensive, retinopathy, and ED symptoms were not manifestly different than those reported at his VA examinations. The Board acknowledges the Veteran had intermittent systolic BP readings reflecting of 160 or more; however, his systolic BP readings were predominantly normal throughout the appeal period.

Based on the foregoing, the Board finds that the Veteran is not entitled to a higher rating for DM with DR, hypertension, and ED. In this regard, the Veteran's DM was treated with oral hypoglycemic agent and a restricted diet which is consistent with the 20 percent rating. There is no indication from the record that the Veteran's DM required consistent regulation of activities (avoidance of strenuous occupational and recreational activities). 38 C.F.R. § 4.119, Diagnostic Code 7913. 

Additionally, the Board finds that the Veteran is not entitled to compensable ratings for associated service-connected DR, hypertension, and ED. In this regard, the Veteran's corrected distance visual acuity has been consistently 20/40 or better in both eyes without documented incapacitating episodes. 38 C.F.R. § 4.79, Diagnostic Code 6040. There is no indication from the record that his diastolic pressure is predominantly 100 or more, his systolic pressure is predominantly 160 or more, or he has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. Further, there is no evidence that the Veteran had a penile deformity or impairment analogous to a penile deformity. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Therefore, a rating in excess of 20 percent for DM with DR, hypertension, and ED is not warranted.

The Board has considered the Veteran's lay statements regarding the severity of his symptoms to include headaches, fatigue, sensitivity to cold, constipation, dry skin, struggle with weight gain, and muscle pain. Certainly, laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence does not establish a greater degree of functional impairment than that contemplated by the currently assigned 20 percent rating. Moreover, complications associated with the Veteran's DM are already contemplated by his service-connected diabetic retinopathy, hypertension, erectile dysfunction, nephropathy, and peripheral neuropathy.

The Board has considered assigning a separate rating under another diagnostic code. However, there are no additional complications associated with the Veteran's DM other than that for which service-connection is already in effect. Special monthly compensation (SMC) has been awarded for loss of use of a creative organ. Therefore, a separate rating under another diagnostic code is not warranted and the Veteran's symptoms are accurately reflected by the rating assigned under 38 C.F.R. § 4.119, Diagnostic Code 7913.

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a rating in excess of 20 percent for DM with DR, hypertension, and erectile dysfunction is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 

2. Nephropathy

The Veteran has contended that his nephropathy is worse than that contemplated by the currently assigned ratings. 38 C.F.R. § 4.115b, Diagnostic Code 7541. 

Between September 2011 and January 2015, VA medical center (VAMC) laboratory testing showed that the Veteran's blood urea nitrogen (BUN) and creatinine were normal. There was no evidence of albuminuria or edema.

In January 2015, the Veteran was afforded a VA examination. He had renal dysfunction to include recurring proteinuria (albuminuria). His treatment plan included taking continuous medication. His estimated glomerular filtration rate (eGFR) was 79, BUN was 19, and creatine was 0.95. At the time, his proteinuria (albumin) was normal. 

The Veteran had a VA examination in June 2021. He had renal dysfunction and his treatment plan included taking continuous medication. He denied any edema or nocturia. The examiner indicated that the Veteran's eGFR was abnormal at 57. His creatine was 1.15. 

In November 2021, the Veteran was provided an additional VA examination. He had renal dysfunction and his treatment plan included taking continuous medication. His estimated eGFR was 52. BUN was 25. His creatine was 1.33. He did not have any protein, sugar, ketones, or urobilinogen in his urine.

The Board finds that a higher rating for nephropathy is not warranted throughout the appeal period. In this regard, there is no competent evidence that the Veteran's renal dysfunction resulted in albumin, constant or recurring with hyaline and granular casts or red blood cells; transient or slight edema; or hypertension at least 10 percent disabling prior to January 27, 2015. From January 27, 2015, a VA examiner found that the Veteran had recurring albumin, which is consistent with the 30 percent rating. There is no indication from the record that the Veteran experienced constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling. Accordingly, a compensable rating prior to January 27, 2015, and a rating in excess of 30 percent thereafter, is not warranted. 38 C.F.R. § 4.115b, Diagnostic Code 7541.

The Board has considered the Veteran's lay statements regarding the severity of his symptoms, to include his argument that an increase within the normal ranges for albumin, BUN, creatinine, and eGFR represented a decrease in kidney function. However, the Board finds that the increases do not establish a greater degree of functional impairment than that contemplated by the currently assigned noncompensable and 30 percent ratings.

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to increased ratings for nephropathy is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 

3. PN

The Veteran has contended that his PN of the right and left upper and lower extremities is worse than that contemplated by the currently assigned ratings. He is right hand dominant. He reported that PN impacted his overall quality of life. He related that numbness and tingling in his feet affect his stability. He experienced a loss of coordination and numbness which prevented him from participating in activities. He stated that he worked in construction and that his PN interferes with his hobbies, to include building and working with his hands. He described being vulnerable to injuries due to his decreased bilateral reflexes and cold sensation. He stated that he has sustained injuries without any associated feeling in his upper and lower extremities.

In January 2015, the Veteran was afforded a VA examination. He reported numbness in his fingertips which prevented him from performing fine motor activities. He described a variation in feeling hot or ice cold in his feet and experiencing tingling, numbness, burning, and pain of the right and left foot. Regarding the Veteran's bilateral lower extremities, the examiner indicated that the Veteran had moderate pain, mild paresthesias/dysesthesias, and mild numbness. Deep tendon reflexes (DTRs) were decreased in his right and left ankles. Light touch was decreased in the Veteran's left foot/toes. His vibration sensation was absent in his RLE and decreased in his LLE. The Veteran's cold sensation was decreased in his LLE. For the Veteran's bilateral upper extremities, prior diagnostic tests showed that the Veteran had bilateral median neuropathy. The examiner indicated that the Veteran had mild paresthesias/dysesthesias and moderate numbness. DTRs were decreased in his biceps, triceps, and brachioradialis. The Veteran's cold sensation was decreased in his LUE. He did not have any muscle atrophy or trophic changes in the upper and lower extremities. 

The Veteran had a VA examination in June 2021. He reported awakening with pain in his toes. He experienced frequent pain in his left finger and stabbing pain in his right and left great toe. He described feeling unsure of where he was walking due to numbness or walking on an uneven ground. He stated that he had dropped things like a coffee cup. Regarding the Veteran's bilateral lower extremities, the examiner indicated that the Veteran had mild pain, mild paresthesias/dysesthesias, and moderate numbness. DTRs were decreased in his right and left ankle. Light touch was decreased in the Veteran's bilateral ankle/lower leg and foot/toes. The examiner determined that the Veteran had mild incomplete paralysis involving the left superficial peroneal nerve and right internal saphenous nerve, and moderate incomplete paralysis involving the bilateral femoral nerves, bilateral common peroneal nerves, and right superficial peroneal nerve. For the Veteran's bilateral upper extremities, the examiner indicated that the Veteran had moderate pain in the LUE, moderate paresthesias/dysesthesias of the RUE, mild paresthesias/dysesthesias of the LUE, mild numbness of the RUE, and moderate numbness of the LUE. DTRs were decreased in his biceps, triceps, and right brachioradialis. DTRs were absent in his left brachioradialis. Light touch was decreased in the Veteran's shoulder area and left hand/fingers. The examiner determined that the Veteran had mild incomplete paralysis involving the left radial nerve and bilateral lower radicular group. He did not have any muscle atrophy or muscle weakness in the upper and lower extremities. His vibration and cold sensations were decreased in the upper and lower extremities. He had trophic changes, to include no hair from mid-calf to toes and the skin on his lower legs had a shiny appearance. The examiner noted that the Veteran had sensory ataxia causing him to walk with a wide-based gait due to numbness and loss of sensation in his feet/toes. The Veteran did not use an assistive device. However, the examiner remarked that as sensory neuropathies progress, patients develop profound sensory ataxia and almost always decline to the point where mobility aids are required.

In November 2021, the Veteran was provided an additional VA examination. He stated that he struggled to find foot placement due to numbness and tingling in his feet, bilaterally. He added that he found it difficult to walk on uneven surfaces when helping his wife with yard work. He experienced diminished feeling in hands and feet, cold or hot sensations, and sharp stabbing pain in his right and left great toe. Regarding the Veteran's bilateral lower extremities, the examiner indicated that the Veteran had moderate pain, mild paresthesias/dysesthesias, and mild numbness. He had reduced muscle strength in his ankles, bilaterally. DTRs were decreased in his right and left ankle. Light touch was decreased in the bilateral foot/toes. His vibration sensation was absent in his RLE and decreased in his LLE. For the Veteran's bilateral upper extremities, the examiner indicated that the Veteran had mild pain paresthesias/dysesthesias of the RUE and LUE, mild numbness of the LUE, and moderate numbness of the RUE. He had reduced muscle strength in his wrist, grip, and pinch, bilaterally. DTRs were decreased in his biceps and brachioradialis. Light touch was decreased in the Veteran's right inner/outer forearm and bilateral hand/fingers. His RUE position sense and vibration sensation were decreased. The examiner determined that the Veteran had mild incomplete paralysis involving the bilateral median nerves and right ulnar nerve. He did not have any muscle atrophy in the upper and lower extremities. His vibration and cold sensations were decreased in the upper and lower extremities. He had trophic changes to include no hair in mid-calf with shiny skin of the lower legs. The examiner remarked that the Veteran had sensory ataxia and mild sensory neuropathy of the upper and lower extremities. 

Based on the foregoing, the Board finds that the Veteran is entitled to higher ratings for PN of the right and left upper extremities. In this regard, the VA examiners determined that the Veteran had incomplete paralysis involving the bilateral median nerves, bilateral lower radicular group, left radial nerve, and right ulnar nerve. Furthermore, the Veteran's right and left upper extremities demonstrated more than sensory findings, such as diminished or absent DTRs, reduced muscle strength, impairment of fine motor activities, and the Veteran would drop things. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that a 50 percent rating for PN, right upper extremity, and a 40 percent rating for PN, left upper extremity, is warranted for the entire appeal period. 38 C.F.R. § 4.124a, Diagnostic Code 8512. 

The remaining evidence of record shows that the Veteran is entitled to higher ratings for PN of the right and left lower extremities. In this regard, the VA examiners found that the Veteran had incomplete paralysis involving the bilateral superficial peroneal nerves and bilateral common peroneal nerves. Furthermore, the Veteran's right and left lower extremities demonstrated more than sensory findings, such as diminished DTRs, reduced muscle strength, trophic changes, and the Veteran had difficulty walking on uneven surfaces. Although the June 2021 VA examiner indicated that the Veteran's PN involved the bilateral femoral and right internal saphenous nerves, the Board finds that the remaining lay and medical evidence of record does not support symptomatology that affected the thigh and leg sensory and motor function of the quadriceps muscle, front of thigh; medial calf; and medial malleolus. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that 40 percent ratings are warranted throughout the appeal period for PN, right and left lower extremities. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 

The Board has considered assigning higher ratings for PN of the right and left upper and lower extremities. However, the Board finds that there is no indication from the record that the Veteran has marked muscular atrophy of the lower extremities or complete paralysis of the upper or lower extremities. As shown above, the combined nerve injuries for the Veteran's right and left upper extremities were sufficient in extent to be considered under Diagnostic Code 8512. 38 C.F.R. § 4.124a. Additionally, the Board notes that the common peroneal and superficial peroneal nerves are part of the sciatic nerve branch and assigning separate ratings would be in violation of 38 C.F.R. § 4.14 (2020).

Moreover, the Board finds that there is no evidence showing that the Veteran's disability picture is exceptional or unusual to require an extraschedular evaluation. While the Veteran argued that his PN caused marked interference with employment because of its impact on his fine motor skills, mobility, and stability, the Board finds that the symptomatology reported by the Veteran is fully contemplated by the applicable rating criteria. There are no characteristics or manifestations shown that is so exceptional as to render the criteria inapplicable. 38 C.F.R. § 3.321 (2020); Thun v. Peake, 22 Vet. App. 111 (2008).

Therefore, the Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to ratings of 50 percent, but not higher, for RUE PN; and 40 percent each, but not higher, for LUE PN, RLE PN, and LLE PN is warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).  

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Ware, 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.