Case A26040832

JONATHAN B. KRAMER · 2026 · Case ID: A26040832

MIXED

Summary

The veteran, who served in the U.S. Marine Corps from October 1972 to October 1975, appeals a February 2021 rating decision that granted service connection for diabetes mellitus type II (DMII) and diabetic peripheral neuropathy of the bilateral lower extremities, but denied an earlier effective date for these conditions and an increased rating for residuals of a pilonidal cyst. The veteran sought an earlier effective date for DMII and bilateral lower extremity neuropathy, claiming entitlement from prior to May 30, 2018. The Board denied this, finding no claim or intent to claim was filed prior to May 30, 2018, and the veteran did not file within one year of separation from service. The veteran also sought an increased rating for a pilonidal cyst scar, which was rated at 10 percent. The Board denied an increased rating, finding the evidence did not support a higher evaluation under the applicable diagnostic code for painful or unstable scars. For DMII, the Board found the veteran's condition, while requiring insulin and oral hypoglycemic agents, did not meet the criteria for a higher rating as a restricted diet was not required, and the condition did not necessitate regulation of activities. The Board acknowledged the Ingram v. Collins decision regarding medication effects but found DC 7913 for diabetes contemplates medication management. The Board granted a 20 percent rating for bilateral diabetic peripheral neuropathy, finding the evidence supported moderate incomplete paralysis, but denied higher ratings as the evidence did not indicate moderately severe impairment. The case was remanded for a new VA opinion on COPD, as the initial opinion failed to address calcifications found on chest x-rays from separation and a later VA x-ray.

Rationale

Rated under DC 7899-7804, analogous to DC 7804 for unstable or painful scars.; August 2020 VA exam found scar painful but not unstable.; Evidence does not support a higher evaluation than 10 percent for painful scars.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210323-148596

Full Decision Text

Citation Nr: A26040832
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210323-148596
DATE: April 30, 2026

ORDER

An effective date prior to May 30, 2018, for the grant of service connection for pilonidal cyst on the tailbone, status post excision, is denied.

An effective date prior to May 30, 2018, for the grant of service connection for diabetes mellitus, type II (DMII), is denied.

An effective date prior to May 30, 2018, for the grant of service connection for diabetic peripheral neuropathy of the left lower extremity is denied.

An effective date prior to May 30, 2018, for the grant of service connection for diabetic peripheral neuropathy of the right lower extremity is denied.

An initial disability rating in excess of 10 percent for painful residuals of pilonidal cyst on tailbone, status post excision, is denied.

An initial compensable disability rating for DMII is denied.

An initial disability rating of 20 percent, but no higher, for diabetic peripheral neuropathy of the left lower extremity is granted.

An initial disability rating of 20 percent, but no higher, for diabetic peripheral neuropathy of the right lower extremity is granted.

REMANDED

The claim of service connection for obstructive pulmonary disease (COPD) is remanded.

FINDINGS OF FACT

1. Prior to May 30, 2018, VA received no communication from the Veteran indicating an intent to claim service connection for residuals of a pilonidal cyst removal nor within one year of his separation from service.

2. Prior to May 30, 2018, VA received no communication from the Veteran indicating an intent to claim service connection for DMII.

3. An effective date of May 30, 2018, is the earliest possible effective date assignable for the grant of service connection for peripheral neuropathy of the left lower extremity as part of the diabetic process.

4. An effective date of May 30, 2018, is the earliest possible effective date assignable for the grant of service connection for peripheral neuropathy of the right lower extremity as part of the diabetic process.

5. The Veteran's one painful scar following excision of the pilonidal cyst of the tailbone is not shown to have been unstable or associated with underlying soft tissue damage.

6. The Agency of Original Jurisdiction (AOJ) established a baseline level of 20 percent for the Veteran's DMII, in terms of establishing aggravation by the Veteran's service-connected residuals of kidney cancer; the Veteran's diabetes mellitus required more than one daily injection of insulin and use of an oral hypoglycemic agent during the period on appeal.

7. The Veteran's DMII did not require a restricted diet or regulation of activities as part of medical management of his DMII.

8. The Veteran's diabetic peripheral neuropathy of the left lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve; moderately severe incomplete paralysis has not been approximated.

9. The Veteran's diabetic peripheral neuropathy of the right lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve; moderately severe incomplete paralysis has not been approximated.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to May 30, 2018, for the grant of service connection for pilonidal cyst on the tailbone, status post excision, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

2. The criteria for an effective date prior to May 30, 2018, for the grant of service connection for DMII have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

3. The criteria for an effective date prior to May 30, 2018, for the grant of service connection for diabetic peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

4. The criteria for an effective date prior to May 30, 2018, for the grant of service connection for diabetic peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

5. The criteria for a disability rating in excess of 10 percent for painful residuals of a pilonidal cyst of the tailbone, status post excision, have not been met. 38 U.S.C. §§
for diabetic peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

5. The criteria for a disability rating in excess of 10 percent for painful residuals of a pilonidal cyst of the tailbone, status post excision, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.118, Diagnostic Code (DC) 7804.

6. The criteria for an initial compensable disability rating for DMII have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, DC 7913.

7. The criteria for an initial evaluation of 20 percent, but no higher, for diabetic peripheral neuropathy of the left lower extremity are met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520.

8. The criteria for an initial evaluation of 20 percent, but no higher, for diabetic peripheral neuropathy of the right lower extremity are met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from October 1972 to October 1975

This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) under the Appeals Modernization Act (AMA).

In September 2018, the RO issued a rating decision denying the Veteran's claims under the legacy appeal system. The Veteran submitted a timely Notice of Disagreement in May 2019 and in December 2019 a Statement of the Case (SOC) was issued. However, rather than submitting a VA Form 9 for a substantive appeal, in December 2019, the Veteran filed a VA Form 20-0996, Decision Review Request, seeking Higher-Level Review (HLR), under the AMA. Pursuant to the HLR request, a rating decision was issued in April 2020 where the AOJ found a duty to assist error was found in the Veteran's claims of service connection for COPD, DMII, and residuals of a pilonidal cyst of the tailbone.

Following development, a February 2021 rating decision granted service connection for DMII, residuals of a pilonidal cyst of the tailbone, and diabetic peripheral neuropathy of the bilateral lower extremities but denied service connection for COPD.

In March 2021, the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) and selected the AMA hearing lane. The Veteran testified in October 2024 at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

By selecting the Hearing Lane, the law under the AMA limits the evidence consideration in the appeal to that which was of record at the time of the February 2021 rating action, the October 2024 hearing testimony, and 90 days following the Board hearing Here, the Veteran submitted additional medical evidence during the 90 day window and these have been considered by the Board in adjudication.

Earlier Effective Date

Generally, the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

The mere existence of medical evidence of a disorder does not establish an intent to seek service connection, or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an
an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

The mere existence of medical evidence of a disorder does not establish an intent to seek service connection, or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a), 3.155(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).

A "claim" is defined broadly as a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit under the law administered by VA submitted on an application form prescribed by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a).

Effective March 24, 2015, VA amended its regulations to require that all claims be filed on standardized forms prescribed by the Secretary. 79 Fed. Reg. 57660 (Sep. 25, 2014). In doing so, the non-standard informal claims process prescribed under 38 C.F.R. § 3.155(a) (2014) was replaced with a standard form on which to record an intent to file a claim for benefits. However, for claims and appeals filed prior to March 24, 2015, this amendment is not applicable.

In order to preserve a claim for an earlier effective date, under the AMA, the claim must be continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the decision was issued. 38 C.F.R. § 3.2500(c). If an AMA claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500(h). For decisions rendered after a Higher-Level Review by the AOJ, continuous pursuit can be established by filing either a supplemental claim or a VA Form 10182. Id.

By way of history, the Veteran's initial claim for service connection for DMII and residuals of a pilonidal cyst removal was received by the AOJ on May 30, 2018. In a September 2018 rating decision, the claims were denied. In May 2019, the Veteran filed a Notice of Disagreement (NOD), in which he indicated that he disagreed with the decision. A SOC was issued in September 2019. In February 2020, the Veteran submitted VA Form 20-0996 Request for a Higher-Level Review (HLR), in which he identified the September 2019 SOC, and indicated that he was requesting HLR for the issues of service connection for DMII and residuals of a pilonidal cyst, among others. In an April 2020 HLR rating decision, the AOJ identified duty to assist errors in the issues of service connection for DMII and residuals of a pilonidal cyst.

Following development to correct the duty to assist errors, the February 2021 rating decision granted service connection for DMII and painful residuals of the pilonidal cyst on the tailbone, status post excision. The issues of diabetic peripheral neuropathy of the bilateral lower extremities were also granted service connection. An effective May 30, 2018, the initial date of claim, was assigned.

At the Board hearing, the Veteran's representative deferred to judicial review rather than provide testimony on the issues of an earlier effective date. However, the Veteran stated an earlier effective date for the grant of service connection for the residuals of the pilonidal cyst was warranted as it occurred during service and continued since.

A thorough review of the Veteran's file does not show any claims of service connection for DMII or residuals of a pilonidal cyst removal, either formal or informal, submitted prior to May 30, 2018. Additionally, there are no Intents to File submitted within the year prior to the May 30, 2018, claim. As such, May 30, 2018, is the date of receipt of the Veteran
the Veteran's representative deferred to judicial review rather than provide testimony on the issues of an earlier effective date. However, the Veteran stated an earlier effective date for the grant of service connection for the residuals of the pilonidal cyst was warranted as it occurred during service and continued since.

Furthermore, the Veteran separated from service in October 1975. Under 38 C.F.R. § 3.400 for direct service connection, the effective date is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. The effective date for presumptive service connection is the date the entitlement arose, if the claim is received within one year after separation from active duty. However, the Veteran did not file his claim within one year of separation from service. Therefore, the effective date for the grant of service connection remains the date of receipt of the claim or the date entitlement arose, whichever is later. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to May 30, 2018. Again, because no claim was filed prior to May 30, 2018, and because the Veteran did not file his claims of service connection for DMII and residuals of the pilonidal cyst within one year of his separation from service, the claims must be denied.

Based on the foregoing, the Board finds that the evidence of record persuasively weighs against finding an earlier effective date. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Accordingly, an effective date earlier than May 30, 2018, for an award of service connection for residuals of a pilonidal cyst removal, DMII, and diabetic peripheral neuropathy of the bilateral lower extremities are denied.

Initial Increased Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch
. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Residual of a pilonidal cyst removal on the tailbone

The Veteran's residual of a pilonidal cyst removal is rated under 38 C.F.R. § 4.118, DC 7899-7804, for unstable or painful scars. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional DC is shown after a hyphen. The Veteran's disability is thus ultimately rated by analogy under the provisions of DC 7804, for unstable or painful scars.

Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. As the Veteran's scar is not to the head, face, or neck, it is not applicable in this case.

DC 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118.

DC 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage.

Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Note (1) for that code defines an unstable scar as one where, for any reason, there is frequent loss of skin covering over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable.

The criteria regarding skin disabilities previously changed on most recently on August 13, 2018, during the period this condition has remained open and on appeal. Review of the claims folder shows that the Veteran was granted a 10 percent rating under DC 7804 under all historical and present rating schedules during the period on appeal.

Turning to the evidence of record, an August 2020 VA scars/disfigurement examination report indicated that a scar following a pilonidal cyst removal was painful, especially when the Veteran was sitting. The scar on his coccyx was measured 8 cm by 0.2 cm. The VA examiner stated it was not unstable or with underlying soft tissue damage.

The law allows additional compensation based
applicable.

The law allows additional compensation based on scars, which are painful or unstable even if compensable based on other factors. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Again, a 10 percent rating was assigned for a scar that was painful under DC 7804. Based upon the rating criteria, a higher evaluation of 20 percent is not warranted for unstable or painful scars unless the evidence shows: One or two scars that are unstable or painful, with at least one scar being both painful and unstable; or three or four scars that are unstable or painful. Here, is no evidence of an unstable scar.

Based on the foregoing, the evidence of record persuasively weighs against finding entitlement to an increased evaluation in excess of 10 percent for service-connected scar under DC 7804 nor any additional rating for a separate diagnostic code for the Veteran's painful scar of the pilonidal cyst removal on the tailbone. Lynch, 21 F.4th at 776. Accordingly, the claim for an initial increased disability rating is denied.

2. DMII

The Veteran contends that he is entitled to an initial compensable disability rating for his service-connected diabetes mellitus type II.

By way of history, service connection was granted for DMII in a February 2021 rating decision on the basis of aggravation, as the evidence showed that the Veteran's DMII, was aggravated beyond its normal progression by a service-connected condition. VA is required to grant service connection for the degree of aggravation of a nonservice-connected condition by a service-connected disability and to pay compensation for that level of disability attributable to such aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). In such a case, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the nature progress of the disease, from the current level. 38 C.F.R. § 3.310(b).

In assigning the initial rating, the AOJ determined the baseline pre-aggravation evaluation to be 20 percent due to the Veteran's DMII was controlled with insulin. The AOJ further found that following aggravation by the service-connected residuals of kidney cancer, the Veteran's diabetes mellitus symptomatology remained consistent with a 20 percent disability rating based on the use of insulin for diabetic management.

Pursuant to 38 C.F.R. § 3.310(b), the AOJ deducted the 20 percent pre-aggravation baseline level of severity from the current 20 percent level of severity, resulting in the assigned noncompensable disability rating.

Diagnostic Code 7913 provides compensation for diabetes mellitus. 38 C.F.R. § 4.119. Under that code, a 10 percent rating is provided for diabetes mellitus requiring a restricted diet only. Id. A 20 percent rating is provided for diabetes mellitus requiring insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. Id. A 40 percent rating is provided for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is provided for diabetes mellitus requiring 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. Id. A 100 percent rating is provided for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypogly
is required. Id. A 40 percent rating is provided for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is provided for diabetes mellitus requiring 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. Id. A 100 percent rating is provided for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations of activities (avoidance of strenuous occupational and recreational 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. Id.

Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). 38 C.F.R. § 4.119. Non-compensable complications are considered part of the diabetic process under DC 7913. Id.

The term "regulation of activities" is specifically defined as "avoidance of strenuous occupational and recreational activities" with the intention of avoiding hypoglycemic episodes. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Medical evidence is required to support this criterion; a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id.

The use of the conjunctive "and" in DC 7913 means that all criteria must be met to establish entitlement to a 40 percent rating. Id. However, extraschedular consideration may still be available even if the Veteran does not display all of the enumerated criteria for a particular rating. Petermann v. Wilkie, 30 Vet. App. 150, 155 (2018).

The rating criteria for diabetes are "successive," which exist when the evaluation for each higher rating includes the criteria of each lower rating, so that if a component is not met at any level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). For example, the 10 percent evaluation for diabetes mellitus requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366.

Turning to the evidence of record, the Veteran was afforded a VA diabetes mellitus examination where a diagnosis of DMII was confirmed. The Veteran's treatment included prescribed oral hypoglycemic agent(s) and required more than one insulin injection per day. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than twice a month. Hospitalization over the past 12 months was not required.

The remaining record does not otherwise indicate instances of treatment, medication, hospitalizations, or complaints of any symptoms which support a disability rating in excess of 20 percent. The Board finds that the Veteran's treatment plan for DMII required use of prescribed oral hypoglycemic agent(s) and more than one injection of insulin per day during the period on appeal. As such, the Veteran's DMII has been manifested by no worse than a 20 percent disability rating for the entire period on appeal. When deducting the baseline severity of 20 percent from the current 20 percent level of severity, a noncompensable disability rating pursuant to 38 C.F.R. § 3.310(b) is warranted for the Veteran's DMII.

The Veteran nor his representative provided arguments for this claim at the Board hearing. Rather, the Veteran's representative stated that the issue of a compensable disability for the service-connected DMII was deferred for VLJ review.

Given the above, the Board finds that, at the least, the Veteran's DMII did not require a restricted diet during the period on appeal as required for a compensable disability rating. It was further found that the Veteran did not require regulation of activities as part of medical management of his DMII. Therefore, while the Veteran was prescribed oral hypoglycemic agent(s) and insulin injections, an initial increased disability rating is not met as a
.310(b) is warranted for the Veteran's DMII.

The Board acknowledges the Court's recent holding in Ingram v. Collins, 38 Vet. App. 130 (2025) which dictates that the Board must "discount beneficial medication effects when assigning an evaluation." However, in the context of increased ratings, the Court has clearly held that because the effects of medication are expressly contemplated in the rating criteria, the Board may not consider the beneficial effects of medication. See McCarroll v. McDonald, 28 Vet. App. 267 (2016) (finding that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medication). In reviewing the criteria for DC 7913 that controls ratings for diabetes, the very nature of the criteria focuses on methods to manage diabetes, including insulin and other medications. As DC 7913 explicitly provides for compensation based on the consideration of medication to manage the condition, the Board finds that the effects of medical treatment medication are contemplated in the rating criteria for DC 7913.

Accordingly, the Board finds that the claim of entitlement to an initial compensable disability rating for DMII must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs against the Veteran's claim of entitlement to an initial increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 776.

3. Peripheral neuropathy of the bilateral lower extremities

Service connection was granted for the Veteran's peripheral neuropathy of the bilateral lower extremities in a February 2021 rating decision, which assigned a 10 percent disability rating for each extremity, effective May 30, 2018. 38 C.F.R. § 4.124a, DC 8520. The Veteran contends that initial disability ratings higher than 10 percent are warranted.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, 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.

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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018).

The Board "is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases." Overton v. Wilkie, 30 Vet. 257, 264 (2018). While not binding on the Board, relevant to this case are M21-1 provisions regarding evaluations of paralysis of the sciatic nerve. The M21-1 describes mild incomplete paralysis as a disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area." Part V, sbpt. Iii, ch. 12, sec. A.2.c. Moderate incomplete paralysis, per the M21-1, should be "reserved for the most significant cases of sensory-only impairment," where the sensory involvement covers "a larger area in the nerve distribution." Id. M21-1 examples of a moderate disability include "motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate." Id. And the M21-1 provides that a moderately severe evaluation (that is, a 40% rating) is available when there is "[m]otor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a higher level of limitation or disability." Id. Atrophy may, but need not, be present for a moderately severe rating.

In discussing severe, incomplete paralysis, VA's Adjudication Manual, V.iii.12. A.2.c., indicates, "In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases." The Manual also indicates, "For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected." Moreover, according to the Manual, "[e]ven though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve." Finally in this regard, the Manual states, "Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123)."

Turning to the evidence of record, the Veteran submitted a September 2019 Disability Benefits Questionnaire completed by a private examiner, Dr. R.T. The Veteran stated he had "struggled with [bilateral] lower extremity neuropathy for years now. His symptoms included moderate intermittent pain and numbness of the bilateral lower extremities. Dr. R.T. indicated that the Veteran's bilateral sciatic nerve had moderately incomplete paralysis. The Veteran's mobility was limited and ambulation was adversely affected.

An August 2020 VA diabetic sensory-motor peripheral neuropathy examination report reflected that the Veteran experienced tingling sensation in the legs. The Veteran's symptoms included mild bilateral paresthesias and/or dysesthesias. The VA examiner determined that the Veteran's bilateral sciatic nerve had mild incomplete paralysis.

The Board has considered the evidence of record and finds that a disability rating of 20 percent, but no higher, is warranted for the Veteran's left and right lower extremity sciatica.

Although the August 2020 VA examination indicated the severity of the right and left lower extremities was at a mild degree, the September 2019 assessment by Dr. R.T. indicated the Veteran's bilateral sciatic nerve was moderately incomplete paralysis. The Veteran also testified at the Board hearing that he experienced shooting pains in his feet and had problems with his balance due to numbness. Therefore, the Board finds that the 20 percent disability rating has been met for the diabetic peripheral neuropathy of the bilateral lower extremities.

The Board, however, finds that a rating in excess of 20 percent for diabetic peripheral neuropathy of the bilateral lower extremities is not warranted. The medical evidence weighs against the presence of symptoms indicative of moderately severe impairment, such as muscle atrophy, trophic changes, or complete sensory loss. Thus, the Veteran's diabetic peripheral neuropathy of the bilateral lower extremities does not more nearly approximate the level of disability for moderately severe incomplete paralysis.

Based on the foregoing, increased ratings of 20 percent, but no higher, for diabetic peripheral neuropathy of the left and right lower extremities are warranted.
Board finds that the 20 percent disability rating has been met for the diabetic peripheral neuropathy of the bilateral lower extremities.

Based on the foregoing, increased ratings of 20 percent, but no higher, for diabetic peripheral neuropathy of the left and right lower extremities are warranted. The evidence of record persuasively weighs against finding higher disability ratings at any point during the appeal period. Lynch, 21 F.4th at 781-82.

REASON FOR REMAND

Under the AMA, the Board must remand a claim to correct an error by the AOJ to satisfy its duty to assist the claimant under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f) (2) (A); 38 C.F.R. § 20.802 (a). After thorough review of the evidence, the Board finds that a pre-decisional duty to assist error was made in this appeal.

The Veteran claims his COPD is related to service. Specifically, during the October 2024 Board hearing the Veteran alleged he was exposed to asbestos during his duties as a cook in mess halls.

According to the October 1975 Report of Medical Examination at separation indicated normal lung and chest functioning. An October 1975 x-ray revealed calcification in the left base but "otherwise, within normal limits."

A July 2020 VA chest r-ray report reflect that a calcified granuloma was "again seen at the left lung base."

In August 2020, the Veteran was afforded another VA respiratory examination where a diagnosis of COPD was confirmed. The Veteran stated the onset the date of onset was in 2010 with a gradual onset of shortness of breath. The VA examiner opined that it was less likely than not that the COPD was incurred in or caused by the military service.

While the VA examiner provided an etiological opinion and a rationale, the Board finds it is inadequate as the opinion failed to consider and address the finding of a calcification at separation from service and the July 2020 VA chest x-ray revealing a calcified granuloma in the left lung base. Therefore, a new VA opinion is warranted to correct a pre-decisional duty to assist error.

The matter is REMANDED for the following action:

Obtain an addendum VA opinion to address the etiology of the Veteran's COPD. If a physical examination is necessary to answer the Board's questions, one should be scheduled.

The VA examiner is asked whether it is approximately at least as likely as not that the Veteran's COPD began in or was otherwise caused by the Veteran's active military service? Why or why not?

The VA examiner is asked to consider and address the October 1975 Report of Medical Examination report during the Veteran's separation from service indicating that a chest x-ray showed calcification in the left base and the July 2020 VA chest x-ray report reflecting a calcified granuloma in the left lung base. A thorough explanation is requested.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board H. Yoo, 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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