Citation Nr: 1754168	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-14 552	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to initial disability ratings for coronary artery disease status post percutaneous intervention in excess of 10 percent prior to May 30, 2012, and in excess of 30 percent thereafter.

2.  Entitlement to initial disability ratings for diabetes mellitus, type II, with peripheral neuropathy of the bilateral lower extremities in excess of 10 percent prior to October 26, 2009, and in excess of 20 percent thereafter.

3.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity associated with diabetes mellitus type II.

4.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity associated with diabetes mellitus type II.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission

WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter


ATTORNEY FOR THE BOARD

B. Isaacs, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to December 1968, involving service in the Republic of Vietnam.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

With regard to the diabetes claim, the RO granted service connection for diabetes mellitus in the April 2009 rating decision and assigned a 10 percent rating effective March 27, 2008.  Thereafter, the October 2010 rating decision increased the rating to 20 percent, effective October 26, 2009.  With regard to the heart disability, the RO granted service connection for coronary artery disease status post percutaneous intervention in the October 2010 rating decision and assigned a 10 percent rating effective April 30, 2009.  In the April 2012 rating decision, the RO assigned an earlier effective date of December 17, 2008 for the heart disability, with a 10 percent rating as of that date.  Thereafter, in the December 2012 rating decision, the RO increased the rating for heart disease to 30 percent, effective May 30, 2012.  

In an August 2016 rating decision, service connection was granted and 10 percent ratings were assigned, for right and left lower extremity peripheral neuropathy associated with diabetes mellitus, type II.  However, because the rating criteria direct VA to evaluate compensable complications of diabetes separately unless they are part of a 100 percent evaluation, the Board will consider whether higher rating claims for service-connected right and left lower extremity peripheral neuropathy associated with diabetes mellitus, type II.  38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, note (1).

In October 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  In March 2016, the Board remanded the claims for further development.


FINDINGS OF FACT

1.  From December 17, 2008 to October 21, 2015, the Veteran's coronary artery disease caused unstable, severe angina and most closely approximates a workload of greater than 5 METs, but not greater than 7 METs; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray.

2.  From October 22, 2015, the Veteran's coronary artery disease manifests in a workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope.

3.  From March 27, 2008 to October 25, 2009, the Veteran's diabetes mellitus required no more than a restricted diet for treatment.

4.  From October 26, 2009, the Veteran's diabetes mellitus required no more than a restricted diet and an oral hypoglycemic agent or insulin for treatment; no regulation of activities was required for diabetes.

5.  Prior to September 26, 2012, the Veteran's right and left lower extremity peripheral neuropathy manifested neurologic impairment that resulted in disability analogous to mild incomplete paralysis of the sciatic nerve.

6.  From September 26, 2012, the Veteran's right and left lower extremity peripheral neuropathy manifested neurologic impairment that resulted in disability analogous to moderate incomplete paralysis of the sciatic nerve.


CONCLUSIONS OF LAW

1.  From December 17, 2008 to May 29, 2012, the criteria for a 30 percent rating, but not higher, for coronary artery disease have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, DC 7005 (2016).

2.  From May 30, 2012 to October 21, 2015, the criteria for a rating in excess of 30 percent for coronary artery disease have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005, (2016).

3.  From October 22, 2015, the criteria for a rating of 60 percent, but not higher, for coronary artery disease have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, DC 7005 (2016).

4.  From March 27, 2008 to October 25, 2009, the criteria for a rating in excess of 10 percent for diabetes mellitus have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.119, DC 7913 (2016).

5.  From October 26, 2009, the criteria for a rating in excess of 20 percent for diabetes mellitus have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.119, DC 7913 (2016).

6.  Prior to September 26, 2012, the criteria for an initial rating in excess of 10 percent, for right lower extremity peripheral neuropathy associated with diabetes mellitus, type II, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, DC 8520 (2016).

7.  From September 26, 2012, the criteria for a rating of 20 percent, but not higher, for right lower extremity peripheral neuropathy associated with diabetes mellitus, type II, have been met.  U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, DC 8520 (2016).

8.  Prior to September 26, 2012, the criteria for an initial rating in excess of 10 percent, for left lower extremity peripheral neuropathy associated with diabetes mellitus, type II, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, DC 8520 (2016).

9.  From September 26, 2012, the criteria for a rating of 20 percent, but not higher, for left lower extremity peripheral neuropathy associated with diabetes mellitus, type II, have been met.  U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, DC 8520 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

General Legal Criteria

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations.  See 38 U.S.C.A. § 1155 (2016); 38 C.F.R. §§ 3.321 (a), 4.1 (2016).  
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2016).

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis.  Rather, all of the facts should be examined to determine the date that the disability first manifested.  Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained.  Swain v. McDonald, 27 Vet. App. 219, 224 (2015); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014).  In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, as to when the increase took place.  VAOPGCPREC 12-98.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided, 38 C.F.R. § 4.14.  However, ratings under more than one diagnostic code will be assigned when none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Heart Disease

As noted, the Veteran's heart disability was rated at 10 percent prior to May 30, 2012 and 30 percent from that date. The Veteran contends that higher ratings are warranted and thus, the Board will review the evidence related to both periods to determine if an increase is warranted.

Under DC 7005, a 10 percent evaluation is assigned for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required.  A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray.  A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, DC 7005.

The Veteran received treatment with the VA for his heart disability.  A January 2009 VA treatment record states he had multiple risk factors of progressive angina.  The impression was minimal apical and minimal inferior ischemia and normal wall motion with ejection fraction of 66 percent.  In February 2009, the Veteran underwent cardiac intervention.  The physician indicated the percutaneous coronary intervention procedure was challenging due to tortuosity and multiple severe lesions.  He indicated there was difficulty delivering the stent to the right posterolateral branch.  However, it resulted in successful stenting of the right coronary artery using Endeavor drug-eluting stents.

Thereafter, an April 2009 VA treatment record indicated the Veteran sought treatment for cardiac catheterization for continued angina symptoms, despite the February 2009 stent placements.  The Veteran reported that his angina had worsened, including chest pain with activities of daily living and sometimes even at rest.  He noted his pain is associated with shortness of breath, diaphoresis and dizziness and may be relieved with the use of nitroglycerin.  Ongoing complaints and treatment for unstable angina were found in the record, including October 2009, March 2011 VA, May 2012 and August 2012 VA treatment records.

The Veteran has also been afforded several VA examinations throughout the appeal.  A March 2009 VA examiner indicated thallium stress scan results revealed on images a very small mild apical defect, plus a small, moderately severe proximal inferior defect.  Gated images revealed normal wall motion and the estimated left ventricular ejection fraction was 66 percent.  The examiner also noted the February 2009 noted treatment which included heart catheterization and PCI stent placements with the Veteran being diagnosed with 3 vessel coronary disease.  However, during the examination the Veteran denied dyspnea, cough, orthopnea, PND or angina pain.

The Veteran underwent a January 2010 VA examination in which he reported no shortness of breath, chest pain, orthopnea or paroxysmal nocturnal dyspnea.  Ejection fraction testing was 75 percent.  He was afforded a September 2012 VA examination in which the examiner indicated symptoms of dyspnea, fatigue and angina, as well as testing which showed workload greater than 5 METs but not greater than 7 METs.  The examiner noted the Veteran could not perform an occupation involving prolonged strenuous physical exertion.

As noted, the Veteran was afforded a Board hearing in October 2015 in which he indicated his heart disability had worsened.  The claim came before the Board in March 2016 and was remanded for further development, including a VA examination to assess the current severity of the heart disability.

The Veteran was afforded a May 2016 examination in which he reported that he tried to remain active by walking but was unable to perform yardwork or participate in any heavy lifting or moving.  No myocardial infarction or congestive heart failure was noted and no recent hospitalizations were indicated.  The examiner indicated no cardiac dilatation was found and the most recent echocardiogram was from February 2009 and revealed left ventricular ejection fraction of greater than 50 percent.  She performed an interview-based METs test during the examination which revealed workload of greater than 3 METs but not greater than 5 METs and resulted in fatigue and dizziness.  The examiner noted the Veteran had both an exercise stress test and an interview-based METs test and the interview-based METs test most accurately reflected the Veteran's current cardiac functional level.  Further, she noted the METs level limitation was due solely to the heart condition.  She stated his heart disability limits the work he can perform to no more than sedentary to light duties. 

Based on the evidence above, the Board finds that increased ratings are warranted for the Veteran's appeal period.  His heart disability symptoms most closely approximate a 30 percent rating from the date of the claim to October 22, 2015, and a 60 percent rating is warranted from that date.

With regard to the initial period, December 17, 2008 to October 21, 2015, the Veteran sought significant treatment for his heart disability in 2009 and underwent a percutaneous coronary intervention procedure in February 2009.  A later April 2009 VA treatment record noted continued symptoms, including for severe angina.  The Veteran reported that his angina had worsened, including with activities of daily living and sometimes even at rest.  He continued to report angina symptoms throughout the appeal period.  Thus, based on the February 2009 procedure and treatment for symptoms thereafter, the Board finds a 30 percent rating is warranted from December 17, 2008 to October 21, 2015, in particular when resolving all reasonable doubt in the Veteran's favor.

The Board acknowledges the VA examinations from March 2009 and January 2010 which did not appear to indicate symptoms consistent with a 30 percent rating.  No METs testing showed workload greater than 5 METs but not greater than 7 METs.  Further, the January 2010 examiner noted no reports of shortness of breath, chest pain, orthopnea or paroxysmal nocturnal dyspnea and found ejection fraction of 75 percent.  However, the September 2012 VA examiner indicated symptoms of dyspnea, fatigue and angina.   He also reported that METs testing revealed workload of greater than 5 METs but not greater than 7 METs, consistent with a 30 percent rating under DC 7005.  Thus, based on the VA treatment records supporting ongoing unstable and severe angina, as well as the testing results from the September 2012 VA examination, the Board finds a rating of 30 percent is warranted from December 17, 2008, the date of the claim, to October 21, 2015 under DC 7005.

Although an increased rating is warranted for the initial rating period, an even greater increase to 60 percent or 100 percent is not warranted prior to October 22, 2015.  There was no evidence of congestive heart failure; that a workload of less than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, solely due to his coronary artery disease; or that his left ventricular ejection fraction is less than 50 percent, as required for a 60 percent rating under DC 7005.

The Board notes from October 22, 2015, the date of the Board hearing, there is a reasonable basis for finding that the Veteran's service-connected heart disease more nearly approximates the criteria for a 60 percent rating under DC 7005.  During the October 2015 hearing, the Veteran essentially testified that his heart disability had worsened since the previous examination.

The Board remanded the claim in March 2016 and the Veteran was then afforded a May 2016 examination.  The examiner performed an interview-based METs test which revealed workload of greater than  3 METs but not greater than 5 METs, and resulted in fatigue and dizziness, which is consistent the 60 percent rating criteria under DC 7005.  She also noted the Veteran's interview-based METs test most accurately reflected his current cardiac functional level and that his METs level limitation was due solely to the heart condition.

Generally, the effective date for the award of an increased rating should not be assigned mechanically from the date of an examination, but from the date that the increase in disability can be first factually ascertainable.  See Swain, 27 Vet. App. at 224.  Here, the May 2016 VA examination provides the strongest support for an increased rating to 60 percent for the Veteran's heart disability.  However, the Board finds the date the increase is first factually ascertainable is October 22, 2015, the date of the Board hearing when the Veteran testified that his condition had worsened.

While an increased rating to 60 percent is warranted from October 22, 2015, the evidence of record does not support a further increase to 100 percent.  The Veteran has not been found to have congestive heart failure; that a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, solely due to his coronary artery disease; or that his left ventricular ejection fraction is less than 30 percent.

Therefore, the Board finds that the evidence supports an increased rating to 30 percent from December 17, 2008 to October 21, 2015, and an increased rating to 60 percent thereafter.  In determining the current increases, the Veteran has been afforded the benefit of any doubt in this matter.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Diabetes Mellitus

As noted above, the Veteran's diabetes claim was granted in an April 2009 rating decision and a 10 percent rating was assigned, effective March 27, 2008.  The October 2010 rating decision increased the diabetes rating to 20 percent, effective October 26, 2009.  Thus, both periods are being reviewed to determine if an increase is appropriate.

Under DC 7913, the criteria for a 10 percent rating require that diabetes mellitus be manageable by restricted diet only.  The criteria for a 20 percent rating are diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet.  The criteria for a 40 percent rating are diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  The criteria for a 60 percent rating are 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.  Regulation of activities means avoidance of strenuous occupational and recreational activities.  A 100 percent rating requires even more, totally disabling symptomatology.

Following the Veteran's March 2008 claim, he was afforded a March 2009 VA examination in which the examiner indicated that the Veteran follows a restricted diet for diabetics.  He indicated there is no restriction of activity.  He stated the Veteran was limited to one half block of walking, but that the restriction was due to his heart disability and not diabetes.  He went on to diagnose the Veteran with non-insulin dependent diabetes, with exercise and diet for control.

The Board observes the Veteran received treatment at VA medical centers for his diabetes mellitus.  An August 2008 VA treatment record indicated the Veteran was on "diet control for now."  A February 2009 VA treatment record indicated the Veteran's diabetes was controlled by diet.  Additionally, a March 2011 VA record advised the Veteran to modify his diet.

The Veteran underwent a January 2010 VA examination in which the examiner indicated no ketoacidosis or hypoglycemic reactions and no hospitalizations due to diabetes.  He similarly indicated the Veteran was on a restricted diabetic diet and that his treatment involved metformin.  The examiner stated the condition was stable as the Veteran took metformin, his last hemoglobin A1C was performed in October 2009 and was 6.6, and further, he had normal BUN and creatinine readings.

The Veteran was the afforded a September 2012 VA examination in which the examiner indicated the Veteran's treatment includes diet management and a prescribed oral hypoglycemic agent.  He indicated the Veteran required no regulation of activities related to his diabetes management.  His care was listed as less than twice per month and there were no hospitalizations noted.  The examiner indicated the Veteran's diabetes did not impact his ability to work.

At the October 2015 hearing, the Veteran asserted his diabetes had worsened.  He noted his rating should be 20 percent or greater due to his insulin use and restricted movement.  The Board then determined in March 2016 that a VA examination was necessary to determine the current severity of the diabetes condition.

The Veteran underwent a May 2016 VA examination in which the examiner indicated the Veteran's diabetes is managed by a restricted diet and insulin, more than one injection per day.  Significantly, the examiner noted the Veteran requires no regulation of activities as part of his medical management of diabetes mellitus.  His frequency of care was less than two times per month; no hospitalizations were noted, as well as no loss of strength and weight.  She further indicated no impact on his ability to work based on his diabetes.

Based on the evidence of record, the Board finds no increased rating in excess of 10 percent is warranted prior to October 26, 2009, and a rating in excess of 20 percent is not warranted since that date.

With regard to the initial rating period of 10 percent, prior to October 26, 2009, there is no evidence which supports the Veteran managed his diabetes with a restricted diet and insulin, or with a restricted diet and an oral hypoglycemic agent.  The evidence simply indicates his treatment during this period necessitated a restricted diet and exercise.

The March 2009 VA examiner indicated the Veteran followed a restricted diet due to his diabetes.  The examiner indicated there was no necessity for insulin and no diabetic care due to hypoglycemia.  Further, VA treatment records, including from August 2008 and February 2009, support that the Veteran's condition was controlled by diet and exercise alone.  Therefore, the Board finds a rating in excess of 10 percent is not warranted prior to October 26, 2009.

With regard to the later period, from October 26, 2009, the evidence does not support a rating in excess of 20 percent is warranted.  The Veteran was afforded three VA examinations during this period, January 2010, September 2012 and May 2016.  The January 2010 examiner indicated the Veteran's treatment involved a restricted diet and the medication metformin.  The Veteran's condition was reported as stable.  The September 2012 examiner indicated the Veteran's diabetes was controlled by diet and a hypoglycemic agent.  Neither examiner noted a restriction to activities due solely to diabetes.

Following the March 2016 Board remand, the Veteran was afforded a May 2016 VA examination.  The examiner noted the Veteran's condition is managed by a restricted diet and insulin but does not result in regulation of activities as part of his medical management.  Thus, the evidence related to the appeal period supports that the Veteran consistently followed a restricted diet and took a hypoglycemic agent and/or insulin.  However, his treatment regime has not included regulation of activities due solely to diabetes at any time during the appeal period.  On the contrary, he has been encouraged to exercise to control his diabetes by his medical providers.

The Board accordingly finds that the Veteran's diabetes has not met the criteria for a 40 percent or higher rating under DC 7913 at any time during the appeal period because the criteria are successive in nature and regulation of activities is to be shown by medical evidence.  See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007).  Additionally, the evidence does not support a rating in excess of 10 percent prior to October 26, 2009.  As the preponderance of the evidence is against any increased rating during the appeal periods, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

Diabetic Peripheral Neuropathy

The Veteran's diabetic peripheral neuropathy in each leg associated with his diabetes is rated under DC 8520, paralysis of the sciatic nerve.  The RO granted the claim in an August 2016 rating decision and awarded 10 percent ratings for each leg.

DC 8520 provides for a 10 percent rating for mild incomplete paralysis of the sciatic nerve.  A 20 percent rating is warranted for moderate incomplete paralysis.  A 40 percent rating is warranted for moderately severe incomplete paralysis.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  Complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee and flexion of the knee is weakened or lost) warrants an 80 percent rating.

The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be just.  38 C.F.R. § 4.6.  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6.  In applying the schedular criteria for rating peripheral nerve disabilities, 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.  38 C.F.R. § 4.124a.

The Veteran was afforded a March 2009 VA examination in which the examiner noted the onset of the Veteran's leg problems were in early 2008.  The Veteran reported some tingling and numbness distally in his feet.  He also indicated that his neuropathy in his lower extremities interferes with daily activities because the exercise needed for his heart makes his lower extremities worse.  The examiner concluded he did not find any positive physical findings in the Veteran's feet and that he showed improvement with the medication he was taking.

The Veteran underwent a January 2010 examination for his service-connected diabetes mellitus in which the Veteran reported numbness and a pins-and-needles sensation in the soles of his feet for the prior year.  The examiner diagnosed the Veteran with peripheral neuropathy of his lower extremities with subjective symptoms, which are at least as likely as not secondary to diabetes.

Thereafter, during the September 2012 VA examination, the examiner indicated that in both lower extremities the Veteran has moderate pain, constant and intermittent, moderate paresthesias and/or dysesthesias and moderate numbness.  He also reported the Veteran has mild incomplete paralysis in both lower extremities.  No functional impact was noted.

Following the Board's March 2016 remand, the Veteran underwent a May 2016 VA examination in which he reported chronic numbness to his feet.  The examiner noted moderate right lower extremity paresthesias and/or dysesthesias and mild left lower extremity paresthesias and/or dysesthesias.  She also indicated decreased sensation to the Veteran's lower extremities and mild incomplete paralysis in both lower extremities.  The examiner reported the Veteran has difficulty with balance due to his neuropathy which poses an increased fall risk and further, precludes him from work involving frequent mobility or activity involving climbing, bending, stooping and walking.

Based on the evidence, and when affording the Veteran all reasonable doubt, the Board finds that from September 26, 2012, increased ratings to 20 percent are warranted for both lower extremities.  The Veteran has exhibited moderate lower extremity peripheral neuropathy symptoms from that date.  Prior to September 26, 2012, ratings in excess of the current 10 percent ratings for peripheral neuropathy of the lower extremities are not warranted under DC 8520.  38 C.F.R. §§ 3.102.

Prior to September 26, 2012, mild neuropathy symptoms are demonstrated in the Veteran's lower extremities, indicative of a 10 percent rating.  He reported in March 2009 some tingling and numbness distally in his feet and that his neuropathy interferes with daily activities.  In the January 2010 examination, the Veteran reported numbness and a pins-and-needles sensation in the soles of his feet.  When he was afforded the September 2012 VA examination, his symptoms worsened.  The examiner found moderate pain in both lower extremities, as well as moderate paresthesias,  dysesthesias and numbness.  He also reported the Veteran has mild incomplete paralysis in both lower extremities.

While increased ratings to 20 percent are warranted for the lower extremity disabilities effective September 26, 2012, even higher ratings are not supported, as symptomatology indicative of moderately severe or severe incomplete paralysis of the lower extremities was not present.  The Board notes the September 2012 and May 2016 VA examiners both found mild incomplete paralysis in both lower extremities.  Thus, prior to September 26, 2012, the evidence does not support a rating in excess of 10 percent for diabetic peripheral neuropathy in each leg.  From September 26, 2012, ratings of 20 percent, but not higher, are warranted.  See Swain v. McDonald, 27 Vet. App. 219, 224 (2015).

In sum, the Board grants increased ratings to 20 percent for the Veteran's right and left diabetic peripheral neuropathy from September 26, 2012, but any further increases are denied.  Except to the extent granted herein, the preponderance of the evidence is against the claims; there is no doubt to be resolved; and further increased ratings are not warranted.  38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

From December 17, 2008 to May 29, 2012, a rating of 30 percent, but not higher, for coronary artery disease is granted, subject to the law and regulations governing payment of monetary benefits.

From May 30, 2012 to October 21, 2015, a rating in excess of 30 percent for coronary artery disease is denied.

From October 22, 2015, a rating of 60 percent, but not higher, for coronary artery disease is granted, subject to the law and regulations governing payment of monetary benefits.

Prior to October 26, 2009, a rating in excess of 10 percent for diabetes mellitus is denied.

From October 26, 2009, a rating in excess of 20 percent for diabetes mellitus is denied.

Prior to September 26, 2012, an initial rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy is denied.

From September 26, 2012, a rating of 20 percent for right lower extremity diabetic peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary benefits.

Prior to September 26, 2012, an initial rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy is denied.

From September 26, 2012, a rating of 20 percent for left lower extremity diabetic peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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