Citation Nr: 22040586 Decision Date: 07/15/22 Archive Date: 07/15/22 DOCKET NO. 13-35 926 DATE: July 15, 2022 ORDER Entitlement to service connection for a liver disability, to include as secondary to diabetes mellitus, type II, is granted. Entitlement to an earlier effective date of April 28, 2016, for the award of service connection for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted. Entitlement to an earlier effective date of April 28, 2016, for the award of service connection for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted. Entitlement to an effective date of April 28, 2016, for the award of service connection for left lower extremity diabetic peripheral neuropathy (femoral nerve) is granted. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II is denied. Entitlement to a disability rating in excess of 40 percent for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is denied. Entitlement to a disability rating in excess of 40 percent for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is denied. Entitlement to a disability rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy (femoral nerve) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 20, 2016, is remanded. FINDINGS OF FACT 1. The evidence of record is in equipoise concerning whether the Veteran's liver disability is proximately due to his service-connected diabetes mellitus, type II. 2. The Veteran first evidence of right and left lower extremity diabetic peripheral neuropathy is dated April 28, 2016. 3. The Veteran's diabetes mellitus, type II has required the use of oral hypoglycemic agents and a restricted diet but regulation of activities due to this disability has not been demonstrated. 4. The impairment caused by the Veteran's right lower extremity diabetic peripheral neuropathy of the sciatic nerve most closely approximates moderately severe incomplete paralysis with no marked muscle atrophy. 5. The impairment caused by the Veteran's left lower extremity diabetic peripheral neuropathy of the sciatic nerve most closely approximates moderately severe incomplete paralysis with no marked muscle atrophy. 6. The impairment caused by the Veteran's left lower extremity diabetic peripheral neuropathy of the femoral nerve most closely approximates mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a liver disability, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an earlier effective date of April 28, 2016, but no earlier, for the award of service connection for right lower extremity diabetic peripheral neuropathy (sciatic nerve) have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an earlier effective date of April 28, 2016, but no earlier, for the award of service connection for left lower extremity diabetic peripheral neuropathy (sciatic nerve) have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an earlier effective date of April 28, 2016, but no earlier, for the award of service connection for left lower extremity diabetic peripheral neuropathy (femoral nerve) have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. 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, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 6. The criteria for entitlement to a disability rating in excess of 40 percent for right lower extremity diabetic peripheral neuropathy (sciatic nerve) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 8520. 7. The criteria for entitlement to a disability rating in excess of 40 percent for left lower extremity diabetic peripheral neuropathy (sciatic nerve) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 8520. 8. The criteria for entitlement to a disability rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy (femoral nerve) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1968 to March 1971, to include service in the Republic of Vietnam. The Veteran testified before the undersigned Veterans Law Judge in January 2022 concerning the issues on appeal which are as follows: 1) entitlement to service connection for a liver disability, to include as secondary to diabetes mellitus, type II, 2) entitlement to service connection for an acquired psychiatric disability, to include as secondary to diabetes mellitus, type II, 3) entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II, 4) entitlement to an initial disability rating in excess of 40 percent for right lower extremity diabetic peripheral neuropathy (sciatic nerve), 5) entitlement to an initial disability rating in excess of 40 percent for left lower extremity diabetic peripheral neuropathy (sciatic nerve), 6) entitlement to an initial disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy (femoral nerve), and 7) entitlement to a TDIU prior to August 10, 2020. A copy of the hearing transcript is of record. Service Connection Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balance i.e., "nearly equal" but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022). 1. Entitlement to service connection for a liver disability, to include as secondary to diabetes mellitus, type II, is granted. The Veteran maintains entitlement to service connection for a liver disability which he believes is secondary to his service-connected diabetes mellitus, type II. Following a review of the relevant lay and medical evidence, the Board finds that the evidence persuasively supports a grant of service connection for a liver disability on a secondary basis. First, there is evidence of a current disability. The Veteran was diagnosed with non-alcoholic fatty liver (NAFL) by liver biopsy in 2011. Thus, the first element of secondary service connection is met. Further, the record reflects that the Veteran is service-connected for diabetes mellitus, type II, thereby meeting the second element of secondary service connection. At issue is whether there is an etiological relationship between the Veteran's liver disability and his service-connected diabetes mellitus, type II. The Board finds that the evidence is at least in equipoise concerning this element of secondary service connection. There is evidence of record that weighs against the claim. However, a 2011 private treatment record indicates that diabetes mellitus, type II is a risk factor for NAFL. Additionally, following a review of the claims file and evaluation of the Veteran, the May 2019 VA examiner determined that it is at least as likely as not that the Veteran's NAFL is proximately due to or the result of his service-connected diabetes mellitus, type II. She reasoned that, while the exact cause for NAFL is not clear, "the most widely supported theory implicates insulin resistance as the key mechanism," and cited medical literature to bolster this assertion. The Board finds that the May 2019 VA medical opinion is of significant probative value as the VA examiner reviewed the claims file, performed an examination, and relied on both her own expertise, knowledge, and training, and medical literature in proffering it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for a liver disability on a secondary basis is warranted. Earlier Effective Dates Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 2. Entitlement to an earlier effective date of April 28, 2016, but no earlier, for the award of service connection for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted. 3. Entitlement to an earlier effective date of April 28, 2016, but no earlier, for the award of service connection for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted. 4. Entitlement to an earlier effective date of April 28, 2016, but no earlier, for the award of service connection for left lower extremity diabetic peripheral neuropathy (femoral nerve) is granted. The Veteran seeks earlier effective dates for the awards of service connection for right and left lower extremity diabetic peripheral neuropathy. For the following reasons, the Board finds that earlier effective dates are warranted for these benefits. A review of the record shows that the Veteran submitted a claim to reopen the issue of entitlement to service connection for diabetes mellitus, type II in April 2012. The claim was granted in a November 2015 Board decision and effectuated in a March 2018 rating decision, with an effective date of April 9, 2012. Notably, the Diagnostic Code for diabetes indicates that complications of diabetes are to be evaluated separately. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note. Thus, in that same decision, the Board was awarded service connection for right and left lower extremity diabetic peripheral neuropathy, as secondary to his service-connected diabetes, with an effective date of June 20, 2016, the date that the Veteran's diagnosis was first confirmed by EMG study. Upon review of the claims file, the Board finds evidence of the claimed condition prior to the currently assigned effective dates. Specifically, a treatment record dated April 28, 2016, reveals the presence of paresthesias in both legs. This precipitated the June 2016 EMG study that confirmed that the Veteran has peripheral neuropathy. The Board acknowledges the Veteran's assertion that this disability has been present since he filed his service connection claim for diabetes in 2012. However, the evidence does not persuasively support this argument: the Veteran's July 2012 VA examination report indicates that he did not have complications of diabetes, including peripheral neuropathy, and a later September 2014 private evaluation report similarly notes the absence of the condition. Accordingly, the Board finds that the proper effective date is April 28, 2016, the date of the first medical evidence of diabetic peripheral neuropathy of the left and right lower extremities, as this is the latter date between the date of the diabetes claim and the date entitlement arose. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 5. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II is denied. The Veteran maintains entitlement to an initial disability rating in excess of 20 percent for his service-connected diabetes mellitus, type II. Diabetes mellitus is evaluated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is assigned when there is evidence that the Veteran's diabetes requires the use of insulin or oral hypoglycemic agent, and a restricted diet. A 40 percent evaluation is assigned for diabetes that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned when there is also evidence 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. Id. "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). In order to show "regulation of activities," there must be medical evidence that it is necessary for a claimant to avoid strenuous occupational and recreational activities. Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007). The United States Court of Appeals for the Federal Circuit has specifically affirmed that for disability rating criteria, such as Diagnostic Code 7913, written in the conjunctive, a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013). In addition, a note following the rating criteria indicates that compensable complications from diabetes mellitus are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. The Board notes that the Veteran is already in receipt of separate VA disability compensation for diabetic peripheral neuropathy of the bilateral lower extremities. The Veteran contends a rating in excess of 20 percent is warranted for service-connected diabetes. As noted above, each separate element of insulin, restricted diet, and regulation of activities must be met for a 40 percent rating. Middleton, 727 F.3d 1172; 38 C.F.R. § 4.119 Diagnostic Code 7913. Turning to the evidence of record, the Veteran underwent a VA examination in July 2012. There, the Veteran's most recent A1c result was 6.0 and his most recent fasting plasma glucose was 113. The VA examiner noted that he had been prescribed oral hypoglycemic agent(s) to treat his impaired fasting glucose. At that time, the Veteran did not require regulation of his activities as part of the medical management of his diabetes. The Veteran reported that he visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice a month. He had not been hospitalized for ketoacidosis or hypoglycemia at all over the previous 12 months. The Veteran did not have progressive, unintentional weight loss or loss of strength attributable to diabetes. Further, he did not display diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction caused by diabetes, or diabetic retinopathy. The Veteran did not have related erectile dysfunction, cardiac condition(s), hypertension, peripheral vascular disease, stroke, skin condition(s), or eye condition(s) other than diabetic retinopathy. In September 2014, the Veteran submitted an evaluation from his private physician which was completed that June. The Veteran's private physician indicated that he had been treated for diabetes since February 2011 and his most recent examination was in May 2014. The Veteran's most recent fasting blood sugar was 135 and his A1c was 6.1 with medical therapy. Concerning the Veteran's required treatment, the private physician indicated that the Veteran was prescribed an oral hypoglycemic agent. At the time of the evaluation, the Veteran did not suffer from peripheral neuropathy, diabetic retinopathy, or an acquired psychiatric impairment secondary to his diabetes. The Veteran attended another VA examination in March 2018. The Veteran's most recent A1c result was 7.3 and his most recent fasting plasma glucose was 97. The VA examiner noted that the Veteran's diabetes was managed by a restricted diet and prescribed oral hypoglycemic agent(s). She observed that the Veteran did not require regulation of activities as part of the medical management of his diabetes. The Veteran reported that he visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice a month. He had not been hospitalized for ketoacidosis or hypoglycemia at all over the previous 12 months. The Veteran did not have progressive, unintentional weight loss and loss of strength attributable to diabetes. The VA examiner found that the Veteran had diabetic peripheral neuropathy associated with his condition, but did not have diabetic nephropathy or renal dysfunction, or diabetic retinopathy. Further, he did not have related erectile dysfunction, cardiac condition(s), hypertension, peripheral vascular disease, stroke, skin condition(s), or eye condition(s) other than diabetic retinopathy. At an October 2019 VA examination, the VA examiner noted that the Veteran's diabetes was managed by a restricted diet and prescribed oral hypoglycemic agent(s). The Veteran's most recent A1c was 7.2 and his most recent fasting glucose was 144. The Veteran reported that he visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice a month. He had not been hospitalized for ketoacidosis or hypoglycemia at all over the previous 12 months. The Veteran did not have progressive, unintentional weight loss and loss of strength attributable to diabetes. The only observed complication of the Veteran's diabetes was diabetic peripheral neuropathy. The Veteran was provided another VA examination in November 2020. The Veteran's most recent A1c and most recent fasting glucose was that which was reported at the October 2019 VA examination. The VA examiner noted that the Veteran's diabetes was managed by a restricted diet and prescribed oral hypoglycemic agent(s). She observed that the Veteran did not require regulation of activities as part of the medical management of his diabetes. The Veteran reported that he visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice a month. He had not been hospitalized for ketoacidosis or hypoglycemia at all over the previous 12 months. The Veteran did not have progressive, unintentional weight loss and loss of strength attributable to diabetes. The only observed complication of the Veteran's diabetes was diabetic peripheral neuropathy. At the Veteran's January 2022 hearing, he testified that he tries to regulate his activities on his own but that his doctor has not specifically instructed him to do so. The Board finds the evidence is persuasively against a rating in excess of 20 percent for diabetes mellitus, type II. While the evidence of record shows that the Veteran requires a restricted diet and the use of oral hypoglycemic agents, the evidence does not reflect that his diabetes mellitus has required the medically indicated regulation of activities. As noted above, "regulation of activities" as used by Diagnostic Code 7913 requires a veteran to have been prescribed or advised to avoid strenuous occupational and recreational activities. In this case, neither the VA examinations, the Veteran's medical records, nor the Veteran's own testimony, suggest that he has been prescribed or advised to avoid strenuous occupational and recreational activities as is required to meet a necessary element for a 40 percent rating under Diagnostic Code 7913. Camacho, 21 Vet. App. 365; Middleton, 727 F.3d 1172; 38 C.F.R. § 4.119 Diagnostic Code 7913. Though the Veteran reported curtailing his activities in his hearing testimony, contentions about regulation of activities must be corroborated by medical evidence to satisfy the requirements of the applicable rating criteria. Camacho, 21 Vet. App. 365; Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 4.119 Diagnostic Code 7913. The medical records and VA examination reports do not show that the Veteran was prescribed any restriction on activities due to diabetes. Rather, the evidence reflects the Veteran had concerns about fluctuations in blood sugar levels, which may have resulted in self-regulation to avoid certain activities, rather than any medically indicated advice to reduce strenuous occupational or recreational activities due to potential complications of diabetes mellitus. Additionally, there is no indication of ketoacidosis or hypoglycemic episodes requiring twice monthly visits to a diabetic care provider or hospitalizations. For these reasons, there is no basis upon which to assign a rating in excess of 20 percent for diabetes mellitus under Diagnostic Code 7913 at any time during the pendency of the appeal. As the persuasive weight of the evidence is against the claim for increase, the evidence is not in approximate balance, and the benefit of the doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102. Therefore, an increased rating in excess of 20 percent for the Veteran's diabetes mellitus, type II is denied. 6. Entitlement to an initial disability rating in excess of 40 percent for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is denied. 7. Entitlement to an initial disability rating in excess of 40 percent for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is denied. 8. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy (femoral nerve) is denied. The Veteran maintains entitlement to increased initial disability ratings for his service-connected diabetic peripheral neuropathy of the right and left lower extremities. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Paralysis of the anterior crural (femoral nerve) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the femoral nerve with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Turning to the evidence of record, an April 2016 treatment record documents the Veteran's complaints of paresthesias in both lower extremities. EMG studies performed in June 2016 revealed the presence of moderately severe sensorimotor polyneuropathy. The Veteran attended a VA examination in March 2018. There, he reported severe constant pain (may be excruciating at times) and intermittent pain (usually dull) in his bilateral lower extremities. He also described moderate paresthesias and/or dyesthesias and numbness in his bilateral lower extremities. The Veteran exhibited decreased muscle strength bilaterally, greater on the left than the right, when tested for knee extension and flexion and ankle plantar flexion and dorsiflexion. Deep tendon reflexes were decreased in both knees and in the Veteran's right ankle and was absent in his left ankle. Light touch/monofilament testing revealed decreased sensation in the Veteran's knees, thighs, feet, and toes, decreased sensation in his right ankle/lower leg, and no sensation in the Veteran's left ankle/lower leg. Position sense was decreased in both lower extremities. The Veteran did not display muscle atrophy in either lower extremity. He did exhibit trophic changes characterized by hair loss to the bilateral lower extremities with smooth, shiny skin. The examiner found that the Veteran had moderately severe incomplete paralysis of the right and left lower extremities (sciatic nerve). She also determined that he exhibited mild incomplete paralysis of the left lower extremity (femoral nerve). Concerning the impact of the disabilities on the Veteran's occupational functioning, the examiner noted that he had significant pain in his bilateral feet and legs that impaired his standing and ambulation. Further, she indicated that the numbness in his bilateral lower extremities place him at increased risk for falls and injury. The Veteran underwent another VA examination in October 2019. There, he reported severe constant pain, intermittent pain, and paresthesias and/or dyesthesias in the bilateral lower extremities. He also described mild numbness in the right lower extremity and moderate numbness in the left lower extremity. The Veteran exhibited normal muscle strength and deep tendon reflexes in both lower extremities. Light touch/monofilament testing revealed normal sensation in the Veteran's right knee/thigh and decreased sensation in his left knee/thigh. He also displayed decreased sensation in both ankles, lower legs, feet, and toes. Position sense, vibration sense, and cold sensation were all decreased in both lower extremities. The Veteran did not display muscle atrophy in either lower extremity. He did exhibit trophic changes characterized by hair loss to the bilateral distal legs. The examiner found that the Veteran had moderate incomplete paralysis of the right and left lower extremities (sciatic nerve). He also determined that he exhibited mild incomplete paralysis of the left lower extremity (femoral nerve). Concerning the impact of the disabilities on the Veteran's occupational functioning, the examiner noted that the Veteran had trouble sleeping well due to pain and reported limits on standing any longer than 20 minutes or walking further than 100 yards. The examiner's final remark was that the Veteran exhibited no demonstrable weakness on examination. The Veteran was provided his most recent VA examination in November 2020. There, he reported severe intermittent pain and paresthesias and/or dyesthesias in the bilateral lower extremities. He also described moderate numbness in the right lower extremity and severe numbness in the left lower extremity. The Veteran exhibited decreased muscle strength and deep tendon reflexes bilaterally. Light touch/monofilament testing revealed decreased sensation bilaterally. Position sense and cold sensation were decreased in both lower extremities. The Veteran did not display muscle atrophy in either lower extremity. He did exhibit trophic changes characterized by hair loss to the bilateral lower extremities. The examiner found that the Veteran had moderately severe incomplete paralysis of the right and left lower extremities (sciatic nerve). She also determined that he exhibited mild incomplete paralysis of the left lower extremity (femoral nerve). She noted that the Veteran's disabilities of the bilateral lower extremities put him at increased risk for falls and injury. At the Veteran's January 2022 hearing, he testified that the nerves in his right lower extremity would jerk, keeping him awake at night. He also reported that he was always numb and that at times he had pain in his foot and toes. Concerning his left lower extremity, he reported that he had numbness in his left upper leg past his knee and down to his foot that was worse than in his right leg. He stated that he could only walk about three blocks without having to rest. He also stated that he had problems with balance and stability. The Board finds that there is no evidence of the Veteran having marked muscular atrophy in either lower extremity, as is the criteria for a higher, 60 percent disability rating for the sciatic nerves under Diagnostic Code 8520. Overall, the Veteran's disabilities of the right and left lower extremities of the sciatic nerves have been characterized as moderately severe by competent, credible medical professionals who have reviewed the Veteran's medical record and history and have provided clinical evaluations throughout the appeal period. Thus, the Board finds that the Veteran's right and left lower extremity diabetic peripheral neuropathy of the sciatic nerves most closely approximate moderately severe incomplete paralysis, and the nature and severity of the condition is appropriately contemplated by the current 40 percent disability ratings assigned. Additionally, the Board finds that there is no evidence of the Veteran having moderate incomplete paralysis of the left lower extremity (femoral), as is the criteria for a higher, 20 percent disability rating for the femoral nerves under Diagnostic Code 8526. Overall, the Veteran's disability of the left lower extremity of the femoral nerve has been characterized as mild by competent, credible medical professionals who have reviewed the Veteran's medical record and history and have provided clinical evaluations throughout the appeal period. Thus, the Board finds that the Veteran's left lower extremity diabetic peripheral neuropathy of the femoral nerve most closely approximates mild incomplete paralysis, and the nature and severity of the condition is appropriately contemplated by the current 10 percent disability rating assigned, which encompasses moderate symptomatology. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, separate, or higher ratings under different Diagnostic Codes is not warranted. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for initial disability ratings in excess of 40 percent for either his right or left lower extremity diabetic peripheral neuropathy of the sciatic nerves. It also persuasively weighs against the Veteran's claim for an initial disability rating in excess of 10 percent his left lower extremity diabetic peripheral neuropathy of the femoral nerve. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th 776. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to diabetes mellitus, type II, is remanded. The Veteran maintains entitlement to service connection for an acquired psychiatric disability, which he believes is secondary to his service-connected diabetes mellitus, type II, or is related to his documented service in the Republic of Vietnam. While a VA examiner has provided an opinion regarding whether the Veteran's claimed disability is proximately due to his diabetes mellitus, type II, a VA examiner has not opined whether any diagnosed acquired psychiatric disability is directly related to service, to include the Veteran's reported fear of hostile military activity. Remand for a new VA examination and medical opinion addressing this is warranted. 2. Entitlement to a TDIU prior to June 20, 2016, is remanded. The issue of entitlement to a TDIU prior to June 20, 2016, must be deferred at this time, pending assignment of the effective date and disability rating for the now service-connected liver disability, and the additional development and adjudication of the Veteran's claim of entitlement to service connection for an acquired psychiatric disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact' upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate psychologist or psychiatrist to determine the etiology of any diagnosed acquired psychiatric disorder. For any acquired psychiatric diagnosed, including PTSD, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) related to the Veteran's military service. A complete rationale should be given for all opinions and conclusions expressed. The examiner must duly consider the Veteran's testimony of having a fear of hostile military activity while serving in the Republic of Vietnam. 2. Following completion of the above, readjudicate the issue of entitlement to TDIU prior to June 20, 2016. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and be given an opportunity to respond. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.