DIABETES MELLITUS

J. GALLAGHER · 2022 · Case ID: 22061721

MIXED

Summary

The veteran, who served from January 1966 to January 1969, appeals the March 2013 rating decision regarding his diabetes mellitus type 2 and its complications. The appeal concerns entitlement to higher disability ratings for diabetes mellitus, right and left upper extremity diabetic neuropathy, right and left lower extremity diabetic neuropathy, diabetic nephropathy, and erectile dysfunction. The Board reviewed the evidence, including multiple VA examinations from March 2013, October 2019, and April 2021, along with extensive VA treatment records. For diabetes mellitus type 2, the Board found that while the veteran managed his condition with medication and a restricted diet, the evidence did not support the need for regulation of activities, thus denying a rating higher than 20 percent. For diabetic neuropathy in the right upper extremity, the Board granted a higher rating of 40 percent retroactively to April 3, 2012, based on moderate symptoms, but denied a rating higher than 40 percent for the entire appeal period. Similarly, for left upper extremity diabetic neuropathy, the Board granted a higher rating of 30 percent retroactively to April 3, 2012, but denied a rating higher than 30 percent for the entire appeal period. For right and left lower extremity diabetic neuropathy, the Board granted higher ratings of 20 percent retroactively to April 3, 2012, but denied ratings higher than 20 percent for the entire appeal period, citing moderate symptoms and outlier findings in one examination. Diabetic nephropathy remained at 60 percent, as the evidence did not meet the criteria for higher ratings under either pre- or post-November 2021 regulations. Finally, service connection for erectile dysfunction was denied as a separate compensable condition, as the evidence did not show a penile deformity and the pre-November 2021 criteria for a compensable rating were not met.

Rationale

Diabetes managed by restricted diet and oral glycemic agent.; Evidence does not support need for regulation of activities.; Medical evidence persuasively weighs against assigning a rating in excess of 20 percent.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-17 489

Full Decision Text

Citation Nr: 22061721
Decision Date: 11/02/22 Archive Date: 11/02/22

DOCKET NO. 17-17 489
DATE: November 2, 2022

ORDER

An initial rating higher than 20 percent for diabetes mellitus type 2 is denied.

For the period prior to February 18, 2021, an initial rating of 40 percent for right upper extremity diabetic neuropathy of the median and ulnar nerves is granted.

For the entire appeal period, a rating higher than 40 percent for right upper extremity diabetic neuropathy of the median and ulnar nerves is denied.

For the period prior to February 18, 2021, an initial rating of 30 percent for left upper extremity diabetic neuropathy of the median and ulnar nerves is granted.

For the entire appeal period, a rating higher than 30 percent for left upper extremity diabetic neuropathy of the median and ulnar nerves is denied.

For the period prior to February 18, 2021, an initial rating of 20 percent for right lower extremity diabetic neuropathy is granted.

For the entire appeal period, a rating higher than 20 percent for right lower extremity diabetic neuropathy is denied.

For the period prior to February 18, 2021, an initial rating of 20 percent for left lower extremity diabetic neuropathy is granted.

For the entire appeal period, a rating higher than 20 percent for left lower extremity diabetic neuropathy is denied.

An initial rating higher than 60 percent for diabetic nephropathy is denied.

An initial compensable rating for erectile dysfunction is denied

FINDINGS OF FACT

1. The Veteran's diabetes mellitus required only restricted diet and an oral glycemic agent during the period on appeal.

2. Prior to February 18, 2021, the Veteran's right upper extremity diabetic neuropathy of the median and ulnar nerves is manifest by moderate incomplete paralysis of the major upper extremity.

3. For the entire appeal period, the Veteran's right upper extremity diabetic neuropathy of the median and ulnar nerves is manifest by no more than moderate incomplete paralysis of the major upper extremity.

4. Prior to February 18, 2021, the Veteran's left upper extremity diabetic neuropathy of the median and ulnar nerves is manifest by moderate incomplete paralysis of the major upper extremity.

5. For the entire appeal period, the Veteran's left upper extremity diabetic neuropathy of the median and ulnar nerves is manifest by no more than moderate incomplete paralysis of the major upper extremity.

6. Prior to February 18, 2021, the Veteran's right lower extremity diabetic neuropathy of the median and ulnar nerves is manifest by moderate incomplete paralysis of the major upper extremity.

7. For the entire appeal period, the Veteran's right lower extremity diabetic neuropathy of the median and ulnar nerves is manifest by no more than moderate incomplete paralysis of the major upper extremity.

8. Prior to February 18, 2021, the Veteran's left lower extremity diabetic neuropathy of the median and ulnar nerves is manifest by moderate incomplete paralysis of the major upper extremity.

9. For the entire appeal period, the Veteran's left lower extremity diabetic neuropathy of the median and ulnar nerves is manifest by no more than moderate incomplete paralysis of the major upper extremity.

10. The Veteran's diabetic nephropathy has not manifested as chronic kidney disease with GFR of 29 mL/min/1.73 m2 or less for at least 3 consecutive months; persistent edema and albuminuria with BUN 40mg% or more; for creatinine 4mg% or more; for generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; or for markedly decreased function of kidney or other organ systems, especially cardiovascular.

11. The evidence fails to show that the Veteran has an internal or external penis deformity.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

2. Prior to February 18, 2021, the criteria for an initial disability rating of 40 percent for right upper extremity diabetic neuropathy of the median and ulnar nerves have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

3. For the entire appeal
of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

3. For the entire appeal period, the criteria for an initial disability rating higher than 40 percent for right upper extremity diabetic neuropathy of the median and ulnar nerves have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

4. Prior to February 18, 2021, the criteria for an initial disability rating of 30 percent for left upper extremity diabetic neuropathy of the median and ulnar nerves have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

5. For the entire appeal period, the criteria for an initial disability rating higher than 30 percent for left upper extremity diabetic neuropathy of the median and ulnar nerves have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513.

6. Prior to February 18, 2021, the criteria for an initial disability rating of 20 percent for right lower extremity diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

7. For the entire appeal period, the criteria for an initial disability rating higher than 20 percent for right lower extremity diabetic neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

8. Prior to February 18, 2021, the criteria for an initial disability rating of 20 percent for left lower extremity diabetic neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

9. For the entire appeal period, the criteria for an initial disability rating higher than 20 percent for left lower extremity diabetic neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

10. The criteria for an initial disability rating higher than 60 percent for diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.115a, 4.115b, Diagnostic Code 7541.

11. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 4.115b, DC 7522.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1966 to January 1969. These matters come before the Board of Veterans' Appeals (Board) from a March 2013 rating decision. The Board remanded these matters in January 2019 and November 2021.

The November 2021 Board remand instructed the Agency of Original Jurisdiction (AOJ) to obtain records from the Social Security Administration (SSA) as well as assist the Veteran in obtaining certain private treatment records. A review of the record reflects that the AOJ made multiple efforts to obtain these records. These efforts, however, revealed that no such records are available. The Veteran has been informed of the result of these efforts. Additionally, he has suggested that any missing private or SSA records are unlikely to assist in the adjudication of the present claims. As such, the Board finds that the AOJ complied with the November 2021 Board remand directives.

1. Entitlement to an initial rating higher than 20 percent for diabetes mellitus type 2

The March 2013 rating decision granted service connection for diabetes mellitus type 2, with a rating of 20 percent, effective April 3, 2012. The Veteran appealed the assigned rating.

Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1).

A March 2013 VA examination indicates that the Veteran's diabetes was managed by restricted diet and medication (Metformin). The examiner explicitly stated that the Veteran's diabetes did not require regulation of activities as part of medical management of his diabetes.

In his March 2017 substantive appeal, the Veteran stated that his diabetes had increased in severity despite his best effort to lead a healthy lifestyle. He did provide any indication that he now required regulation of activities to manage his diabetes.

More recently, VA examinations from October 2019 and April 2021 continue to show an explicit finding that the Veteran's diabetes does not require regulation of activities as part of medical management of his diabetes.

VA treatment records are similarly silent for regulation of activities to manage the Veteran's diabetes. Rather, a May 2022 treatment note indicates that the Veteran was educated on the importance of continuing proper glycemic control using medications and increased activity. This recommendation is inconsistent with the proposition that the Veteran must avoid strenuous occupational and recreational activities to manage his diabetes.

Based on the relevant evidence, the Board finds that the Veteran's diabetes mellitus required only restricted diet and an oral glycemic agent during the period on appeal. However, the medical evidence of record is against a finding that regulation of activities has been required during the period on appeal. Accordingly, the evidence of record persuasively weighs against assigning a rating in excess of 20 percent under DC 7913 during the period on appeal.

2. For the period prior to February 18, 2021, entitlement to an initial rating higher than 20 percent for right upper extremity diabetic neuropathy of the median and ulnar nerves

3. For the entire appeal period, entitlement to a rating higher than 40 percent for right upper extremity
the relevant evidence, the Board finds that the Veteran's diabetes mellitus required only restricted diet and an oral glycemic agent during the period on appeal. However, the medical evidence of record is against a finding that regulation of activities has been required during the period on appeal. Accordingly, the evidence of record persuasively weighs against assigning a rating in excess of 20 percent under DC 7913 during the period on appeal.

2. For the period prior to February 18, 2021, entitlement to an initial rating higher than 20 percent for right upper extremity diabetic neuropathy of the median and ulnar nerves

3. For the entire appeal period, entitlement to a rating higher than 40 percent for right upper extremity diabetic neuropathy of the median and ulnar nerves

The March 2013 rating decision granted service connection for right upper extremity diabetic neuropathy of the median and ulnar nerves, with a rating of 10 percent, effective April 3, 2012. The Veteran appealed the assigned rating.

Staged ratings are currently in effect for right upper extremity diabetic neuropathy of the median and ulnar nerves. From April 3, 2012, it is currently rated as 20 percent disabling. From February 18, 2021, it is rated as 40 percent disabling. The Board will consider whether the Veteran is entitled to higher ratings.

The Veteran's right upper extremity diabetic neuropathy is rated under DC 8513. 38 C.F.R. § 4.124a. He is right-hand dominant. For the dominant arm, DC 8513 provides a rating of 20 percent for mild symptoms of incomplete paralysis of all radicular nerve groups; a rating of 40 percent for moderate symptoms; and a rating of 70 percent for severe symptoms. It provides a maximum rating of 90 percent for complete paralysis of all radicular nerve groups.

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 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).

A March 2013 VA examination shows diagnoses of mild diabetic neuropathies of the median and ulnar nerves, bilaterally. The Veteran reported a history of numbness and burning dysesthesias in his feet and numbness/paresthesias in his hands. Medication was noted to be helping sensory symptoms. Regarding the Veteran's symptoms, the examiner noted moderate intermittent pain, severe paresthesias, and moderate numbness in the lower extremities, and moderate paresthesias in the upper extremities. The examiner cited a November 2011 VA neurology consult, which found no convincing electrodiagnostic evidence of a generalized large fiber peripheral neuropathy. Nevertheless, it was noted that the study did not rule out a small fiber neuropathy and that there was evidence of a focal right median neuropathy at the wrist consistent with moderate severity carpal tunnel syndrome. In their final remarks, the examiner stated that the specific nerves involved in the diabetic peripheral neuropathy involving the lower extremities could not be determined based on the stock distribution loss.

An October 2019 VA examination indicates that the Veteran had increasing bilateral lower and upper extremity nerve pain, numbness, and tingling. Regarding the Veteran's symptoms, the examiner noted mild intermittent pain, mild paresthesias, and mild numbness in the lower and upper extremities. Similarly, the overall severity of the Veteran's peripheral neuropathy was described as mild for each of the nerve groups involved (median, ulnar,
that there was evidence of a focal right median neuropathy at the wrist consistent with moderate severity carpal tunnel syndrome. In their final remarks, the examiner stated that the specific nerves involved in the diabetic peripheral neuropathy involving the lower extremities could not be determined based on the stock distribution loss.

An October 2019 VA examination indicates that the Veteran had increasing bilateral lower and upper extremity nerve pain, numbness, and tingling. Regarding the Veteran's symptoms, the examiner noted mild intermittent pain, mild paresthesias, and mild numbness in the lower and upper extremities. Similarly, the overall severity of the Veteran's peripheral neuropathy was described as mild for each of the nerve groups involved (median, ulnar, and sciatic). Functional impact was described as difficulty with computer work due to upper extremity neuropathy and significant difficulty standing and walking due to lower extremity neuropathy.

More recently, an April 2021 VA examination indicates that the Veteran reported progressively worsening symptoms in his upper and lower extremities. Regarding functional impact, the Veteran reported that his peripheral neuropathy causes him to lose balance and that he could no longer work in the field. Regarding the Veteran's symptoms, the examiner noted moderate intermittent pain, moderate paresthesias, and moderate numbness in the lower and upper extremities. Similarly, the overall severity of the Veteran's peripheral neuropathy was described as moderate for each of the nerve groups involved (median, ulnar, and sciatic).

Based on the evidence above, the Board finds that the Veteran is entitled to a higher rating of 40 percent for his right upper extremity diabetic peripheral neuropathy, for the period prior to February 18, 2021. As noted above, the Veteran was noted to have moderate neurological symptoms in his upper extremities as early as the March 2013 VA examination. Based on this evidence, the Board finds that the currently assigned rating of 40 percent should be made retroactive to the effective date of April 3, 2012.

The Board, however, finds no support for a rating higher than 40 percent at any point of the appeal period. As summarized above, the relevant VA examinations describe the Veteran's symptoms as moderate, with no indication that the Veteran experiences severe symptoms. Significantly, the evidence establishes that functional impact consists of difficulty with computer work. There is no indication that, for example, the Veteran is unable to grip or hold objects or use instruments or utensils. In the Board's estimation, this disability picture more clearly approximates a moderate level of severity.

For the reasons discussed above, the Board finds that the Veteran is entitled to a higher rating of 40 percent for his right upper extremity diabetic peripheral neuropathy for the period prior to February 18, 2021. The evidence, however, is against a rating higher than 40 percent at any point of the appeal period.

4. For the period prior to February 18, 2021, entitlement to an initial rating higher than 20 percent for left upper extremity diabetic neuropathy of the median and ulnar nerves.

5. For the entire appeal period, entitlement to a rating higher than 30 percent for left upper extremity diabetic neuropathy of the median and ulnar nerves

The March 2013 rating decision granted service connection for left upper extremity diabetic neuropathy of the median and ulnar nerves, with a rating of 10 percent, effective April 3, 2012. The Veteran appealed the assigned rating.

Staged ratings are currently in effect for left upper extremity diabetic neuropathy of the median and ulnar nerves. From April 3, 2012, it is rated as 20 percent disabling. From February 18, 2021, it is rated as 30 percent disabling. The Board will consider whether the Veteran is entitled to higher ratings.

The Veteran's left upper extremity diabetic neuropathy is rated under DC 8513. 38 C.F.R. § 4.124a. He is right-hand dominant. For the non-dominant arm, DC 8513 provides a minimum rating of 20 percent for mild symptoms of incomplete paralysis of all radicular nerve groups; a rating of 30 percent for moderate symptoms; and a rating of 60 percent for severe symptoms. It provides a maximum rating of 80 percent for complete paralysis of all radicular nerve groups.

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,
8513 provides a minimum rating of 20 percent for mild symptoms of incomplete paralysis of all radicular nerve groups; a rating of 30 percent for moderate symptoms; and a rating of 60 percent for severe symptoms. It provides a maximum rating of 80 percent for complete paralysis of all radicular nerve groups.

An October 2019 VA examination indicates that the Veteran had increasing bilateral lower and upper extremity nerve pain, numbness, and tingling. Regarding the Veteran's symptoms, the examiner noted mild intermittent pain, mild paresthesias, and mild numbness in the lower and upper extremities. Similarly, the overall severity of the Veteran's peripheral neuropathy was described as mild for each of the nerve groups involved (median, ulnar, and sciatic). Functional impact was described as difficulty with computer work due to upper extremity neuropathy and significant difficulty with standing and walking due to lower extremity neuropathy.

Based on the evidence above, the Board finds that the Veteran is entitled to a higher rating of 30 percent for his left upper extremity diabetic peripheral neuropathy, for the period prior to February 18, 2021. As noted above, the Veteran was noted to have moderate neurological symptoms in his upper extremities as early as the March 2013 VA examination. Based on this evidence, the Board finds that the currently assigned rating of 30 percent should be made retroactive to the effective date of April 3, 2012.

The Board, however, finds no support for a rating higher than 30 percent at any point of the appeal period. As summarized above, the relevant VA examinations describe the Veteran's symptoms as moderate, with no indication that the Veteran experiences severe symptoms. Significantly, the evidence establishes that functional impact consists of
upper extremity diabetic peripheral neuropathy, for the period prior to February 18, 2021. As noted above, the Veteran was noted to have moderate neurological symptoms in his upper extremities as early as the March 2013 VA examination. Based on this evidence, the Board finds that the currently assigned rating of 30 percent should be made retroactive to the effective date of April 3, 2012.

The Board, however, finds no support for a rating higher than 30 percent at any point of the appeal period. As summarized above, the relevant VA examinations describe the Veteran's symptoms as moderate, with no indication that the Veteran experiences severe symptoms. Significantly, the evidence establishes that functional impact consists of difficulty with computer work. There is no indication that, for example, the Veteran is unable to grip or hold objects or use instruments or utensils. In the Board's estimation, this disability picture more clearly approximates a moderate level of severity.

For the reasons discussed above, the Board finds that the Veteran is entitled to a higher rating of 30 percent for his left upper extremity diabetic peripheral neuropathy for the period prior to February 18, 2021. The evidence, however, is against a rating higher than 30 percent at any point of the appeal period.

6. For the period prior to February 18, 2021, entitlement to an initial rating higher than 10 percent for right lower extremity diabetic neuropathy

7. For the entire appeal period, entitlement to a rating higher than 20 percent for right lower extremity diabetic neuropathy

The March 2013 rating decision granted service connection for right lower extremity diabetic neuropathy, with a rating of 10 percent, effective April 3, 2012. The Veteran appealed the assigned rating.

Staged ratings are currently in effect for right lower extremity diabetic neuropathy. From April 3, 2012, it is rated as 10 percent disabling. From February 18, 2021, it is rated as 20 percent disabling. The Board will consider whether the Veteran is entitled to higher ratings.

The Veteran's right lower extremity diabetic neuropathy is rated under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. 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.

A March 2013 VA examination shows a diagnosis of mild diabetic neuropathy of the lower extremities. In their final remarks, the examiner stated that the specific nerves involved in the diabetic peripheral neuropathy involving the lower extremities could not be determined based on the stock distribution loss. The Veteran reported a history of numbness and burning dysesthesias in his feet and numbness/paresthesias in his hands. Medication was noted to be helping sensory symptoms. Regarding the Veteran's symptoms, the examiner noted moderate intermittent pain, severe paresthesias, and moderate
conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

An October 2019 VA examination indicates that the Veteran had increasing bilateral lower extremity nerve pain, numbness, and tingling. Regarding the Veteran's symptoms, the examiner noted mild intermittent pain, mild paresthesias, and mild numbness in the lower extremities. Similarly, the overall severity of the Veteran's peripheral neuropathy was described as mild for the nerve group involved (sciatic). Functional impact was described as difficulty standing and walking due to lower extremity neuropathy.

More recently, an April 2021 VA examination indicates that the Veteran reported progressively worsening symptoms in his lower extremities. Regarding functional impact, the Veteran reported that his peripheral neuropathy causes him to lose balance and that he could no longer work in the field. Regarding the Veteran's symptoms, the examiner noted moderate intermittent pain, moderate paresthesias, and moderate numbness in the lower extremities. Similarly, the overall severity of the Veteran's peripheral neuropathy was described as moderate for the nerve groups involved (sciatic).

Based on the evidence above, the Board finds that the Veteran is entitled to a higher rating of 20 percent for his right lower extremity diabetic peripheral neuropathy, for the period prior to February 18, 2021. As noted above, the Veteran was noted to have moderate neurological symptoms in his lower extremities as early as the March 2013 VA examination. Based on this evidence, the Board finds that the currently assigned rating of 20 percent should be made retroactive to the effective date of April 3, 2012.

The Board, however, finds no support for a rating higher than 20 percent at any point of the appeal period. As summarized above, the relevant VA examinations generally describe the Veteran's symptoms as moderate. The Board acknowledges that the March 2013 VA examination includes a finding of severe paresthesias. This finding, however, appears to be an outlier, when compared to other neurological symptoms as well as the most recent VA examination, which shows a finding of moderate paresthesias. The Board further notes that paresthesias are sensory in nature, and symptoms that are wholly sensory are to be rated as moderate, at most. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."

For the reasons discussed above, the Board finds that the Veteran is entitled to a higher rating of 20 percent for his right lower extremity diabetic peripheral neuropathy for the period prior to February 18, 2021. The evidence, however, is against a rating higher than 20 percent at any point of the appeal period.

8. For the period prior to February 18, 2021, entitlement to an initial rating higher than 10 percent for left lower extremity diabetic neuropathy

9. For the entire appeal period, entitlement to a rating higher than 20 percent for left lower extremity diabetic neuropathy

Staged ratings are currently in effect for left lower extremity diabetic neuropathy. From April 3, 2012, it is rated as 10 percent disabling. From February 18, 2021, it is rated as 20 percent disabling. The Board will consider whether the Veteran is entitled to higher ratings.

The Veteran's left lower extremity diabetic neuropathy is rated under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. 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
February 18, 2021, it is rated as 20 percent disabling. The Board will consider whether the Veteran is entitled to higher ratings.

The Veteran's left lower extremity diabetic neuropathy is rated under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. 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.

Turning to the evidence, a March 2013 VA examination shows a diagnosis of mild diabetic neuropathy of the lower extremities. In their final remarks, the examiner stated that the specific nerves involved in the diabetic peripheral neuropathy involving the lower extremities could not be determined based on the stock distribution loss. The Veteran reported a history of numbness and burning dysesthesias in his feet and numbness/paresthesias in his hands. Medication was noted to be helping sensory symptoms. Regarding the Veteran's symptoms, the examiner noted moderate intermittent pain, severe paresthesias, and moderate numbness in the lower extremities.

Based on the evidence above, the Board finds that the Veteran is entitled to a higher rating of 20 percent for his left lower extremity diabetic peripheral neuropathy, for the period prior to February 18, 2021. As noted above, the Veteran was noted to have moderate neurological symptoms in his lower extremities as early as the March 2013 VA examination. Based on this evidence, the Board finds that the currently assigned rating of 20 percent should be made retroactive to the effective date of April 3, 2012.

The Board, however, finds no support for a rating higher than 20 percent at any point of the appeal period. As summarized above, the relevant VA examinations generally describe the Veteran's symptoms as moderate. The Board acknowledges that the March 2013 VA examination includes a finding of severe paresthesias. This finding, however, appears to be
period prior to February 18, 2021. As noted above, the Veteran was noted to have moderate neurological symptoms in his lower extremities as early as the March 2013 VA examination. Based on this evidence, the Board finds that the currently assigned rating of 20 percent should be made retroactive to the effective date of April 3, 2012.

For the reasons discussed above, the Board finds that the Veteran is entitled to a higher rating of 20 percent for his left lower extremity diabetic peripheral neuropathy for the period prior to February 18, 2021. The evidence, however, is against a rating higher than 20 percent at any point of the appeal period.

10. Entitlement to an initial rating higher than 60 percent for diabetic nephropathy

The March 2013 rating decision granted service connection for diabetic nephropathy, with a rating of 60 percent, effective April 3, 2012. The Veteran appealed the assigned rating.

During the pendency of the appeal, the rating criteria for evaluating genitourinary disabilities were amended effective November 14, 2021. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to November 14, 2021 and both the old and new rating criteria from November 14, 2021. The criteria that is more favorable to the Veteran will be applied.

Diabetic nephropathy is rated based on renal dysfunction. 38 C.F.R. § 4.115b, DC 7541.

Prior to the November 2021 amendments, the Veteran's 60 percent rating is warranted for constant albuminuria with some edema, definite decrease in kidney function, or hypertension manifested by diastolic pressure predominantly 120 or more. An 80 percent rating is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%, creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for required regular dialysis or preclusion of more than sedentary activity from one of the following: BUN more than 80mg%, creatinine more than 8mg%, or markedly decreased function of kidney or other organ systems, especially cardiovascular.

Since the November 2021 amendments, the Veteran's current 60 percent rating is warranted for chronic kidney disease with glomerular filtration rate (GFR) from 30 to 44 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. For a rating of 80 percent, it must show chronic kidney disease with GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. Finally, for a rating of 100 percent, it must show chronic kidney disease with GFR less than 15 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months; or requiring regular routine dialysis; or eligible kidney transplant recipient. GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR will be accepted for evaluation purposes under this section when determined to be appropriate and calculated by a medical
the past 12 months. For a rating of 80 percent, it must show chronic kidney disease with GFR from 15 to 29 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months. Finally, for a rating of 100 percent, it must show chronic kidney disease with GFR less than 15 mL/min/1.73 m2 for at least 3 consecutive months during the past 12 months; or requiring regular routine dialysis; or eligible kidney transplant recipient. GFR, estimated GFR (eGFR), and creatinine-based approximations of GFR will be accepted for evaluation purposes under this section when determined to be appropriate and calculated by a medical professional. 38 C.F.R. § 4.115a.

A March 2013 VA examination indicates that the Veteran had persistent proteinuria. The examination report references a calculated GFR of 58 and refers to BUN level of 25 and a creatinine level of 1.25 as measured in February 2013.

An October 2019 VA examination indicates that the Veteran has a history of what is now stage III chronic kidney disease. The examiner reported an EGFR of 50, based on an August 2019 laboratory study.

More recently, an April 2021 VA examination shows a diagnosis of chronic renal disease. The examiner stated that the Veteran's diagnosis was stage II kidney disease, currently asymptomatic, with abnormal lab findings. The examiner reported an EGFR of 53, based on an April 2021 laboratory study.

A review of VA treatment records reveals the following BUN results: 25 in February 2013; 19 in July 2014; 19 in January 2015; 28 in May 2015; 30, 34, and 35 in July 2015; 31 in October 2015; 26 in July 2016; 34 in November 2016; 33 and 34 in December 2016; 32 in February 2017; 42 in May 2017; 33 in June 2017; 32 in August 2017; 14, 18, and 19 in November 2017; 24 in February 2018; 25 in June 2018; 22 in December 2018; 25 in January 2019; 22 in February 2019; 19 in July 2019; 21 in August 2019; 25 in January 2020; 29, 20, and 21 in February 2020; 20 in June 2020; 27 and 29 in August 2020; 21 in October 2020; 26 in January 2021; 19 in June 2021; 32 in October 2021; 27 in December 2021; 21 in February 2022; and 23 in March 2022.

A review of VA treatment records reveals the following creatinine results: 1.25 in February 2013; 1.45 in January 2014; 1.46 in July 2014; 1.16 in January 2015; 1.58 in May 2015; 1.95, 2.35, and 1.91 in July 2015; 1.74 in October 2015; 1.3 in July 2016; 1.7 in November 2016; 1.3 and 1.4 in December 2016; 1.5 in February 2017; 1.5 in May 2017; 1.4 in June 2017; 1.4 in August 2017; 1.2, 1.3, and 1.4 in November 2017; 1.1 in February 2018; 1.2 in June 2018; 1.4 in December 2018; 1.3 in January 2019; 1.3 in February 2-19; 1.3 in July 2019; 1.4 in August 2019; 1.4 in January 2020; 1.6 in February 2020; 1.3 in June 2020; 1.4 in August 2020; 1.3 in October 2020; 1.4 in January 2021; 1.4 in June 2021; 1.5 in October 2021; 1.7 in December 2021; 1.6 in February 2022; and 1.4 in March 2022.

A review of
January 2019; 1.3 in February 2-19; 1.3 in July 2019; 1.4 in August 2019; 1.4 in January 2020; 1.6 in February 2020; 1.3 in June 2020; 1.4 in August 2020; 1.3 in October 2020; 1.4 in January 2021; 1.4 in June 2021; 1.5 in October 2021; 1.7 in December 2021; 1.6 in February 2022; and 1.4 in March 2022.

A review of VA treatment records reveals the following GFR results: 58 in March 2013; 44 in May 2015; 34, 28 and 35 in July 2015; 39 in October 2015; 48 in April 2016; 47 in May 2016; 55 in July 2016; 46 in February 2017; 46 in May 2017; 50 in June 2017; 50 in August 2017; 50, 53, 55, and 60 in November 2017; 66 in February 2018; 60 in June 2018; over 60 in October 2018; 50 in December 2018; 55 in January 2019; 54 in February 2019; 54 in July 2019; 50 in August 2019; 50 in January 2020; 43 and 54 in February 2020; 54 in June 2020; 50 in August 2020; 50 in January 2021; 50 in June 2021; 46 in October 2021; 39 in December 2021; 43 in February 2022; and 50 in March 2022.

The Board finds that the evidence persuasively weighs against a finding that the Veteran meets the criteria for a higher rating for diabetic nephropathy.

Prior to the November 2021 amendments, higher ratings are available for persistent edema and albuminuria with BUN 40mg% or more; for creatinine 4mg% or more; for generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; or for markedly decreased function of kidney or other organ systems, especially cardiovascular. The evidence persuasively weighs against such findings. Creatinine has not been measured at 4mg% or more. Of the more than 40 times that BUN was measured, it was above 40mg% on a single occasion in May 2017. This does not represent a persistent finding and does not warrant an increased rating. Furthermore, there is no evidence that the Veteran's nephropathy results in generalized poor health or markedly decreased function of organ symptoms. Rather, the April 2021 VA examiner found that the condition was asymptomatic but productive of abnormal lab findings. There is no evidence to contradict these findings.

Under the amended criteria, for the Veteran to be entitled to a higher rating of 80 percent, the evidence must show regular routine dialysis, status as an eligible transplant recipient, or chronic kidney disease with GFR of 29 mL/min/1.73 m2 or less for at least 3 consecutive months during the past 12 months. This is not the case here. While there is evidence of one GFR scores between 15 to 29 mL/min/1.73 m2 in July 2015, the evidence fails to show that the Veteran had such score for at least 3 consecutive months. In fact, the Veteran's GFR score of 28 was followed by one of 34 just five days later. There is no evidence of regular routine dialysis or that the Veteran is an eligible transplant recipient.

In the absence of evidence that the Veteran meets the criteria for increased ratings under DC 7541, a rating higher than 60 percent for his diabetic nephropathy is denied.

11. Entitlement to an initial compensable rating for erectile dysfunction

The March 2013 rating decision granted service connection for erectile dysfunction (associated with diabetes mellitus type 2), with a noncompensable rating, effective April 3, 2012. The Veteran appealed the assigned rating.

As the Veteran's erectile dysfunction is noncompensable, it is rated as part of the diabetes. The Board will consider whether a separate, compensable rating is warranted for erectile dysfunction.

Under DC 7522, a veteran who has a service-connected penis deformity with loss of erectile power is entitled to a
for increased ratings under DC 7541, a rating higher than 60 percent for his diabetic nephropathy is denied.

11. Entitlement to an initial compensable rating for erectile dysfunction

As the Veteran's erectile dysfunction is noncompensable, it is rated as part of the diabetes. The Board will consider whether a separate, compensable rating is warranted for erectile dysfunction.

Under DC 7522, a veteran who has a service-connected penis deformity with loss of erectile power is entitled to a disability rating of 0 percent. This is the sole compensable evaluation provided for DC 7522. 38 C.F.R. § 4.115b. Prior to November 14, 2021, VA rated penis deformity, with loss of erectile power, as 20 percent disabling. In Williams v. Wilkie, 30 Vet. App. 134, 138 (2018), the Court held that "deformity" under DC 7522 is defined as either an internal or external distortion of the penis. Since the November 2021 amendments, a compensable rating is no longer available for erectile dysfunction with or without deformity. As such, the Board will apply the pre-amendment criteria.

In this case, there is no indication that the Veteran has a penis deformity. Pursuant to the November 2021 Board remand, the Veteran underwent a VA examination. As noted in an attached opinion from the examiner, the Veteran underwent a thorough genitourinary examination, during which no anatomical deformities were noted.

The Board acknowledges the Veteran's assertion that he has a penile deformity. While he is competent to report any observable symptoms, he is not competent to diagnose a medical condition, as this requires medical expertise that he has not been shown to have. As discussed above, the Veteran recently underwent a thorough physical examination that was negative for a penis deformity. This medical evidence is considered highly probative and outweighs any observation from the Veteran regarding the nature of his service-connected disability. There is no competent evidence to contradict the examiner's findings.

Based on the above, the Board finds that a compensable rating for erectile dysfunction is not warranted. The competent medical evidence establishes that the Veteran does not have an external or internal penile deformity. Therefore, the criteria for a compensable rating for erectile dysfunction are not met.

J. GALLAGHER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board P. López, 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.

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