200512-83479
200512-83479
| Board of Vet. App. | Sep 30, 2021Background:
- Veteran served active duty March 1966–December 1969 and filed for service connection for diabetes mellitus in July 2016.
- VA granted service connection April 2020: diabetes mellitus, type II rated 20% effective July 20, 2016; bilateral lower‑extremity diabetic neuropathy granted 10% each effective same date.
- Veteran appealed (Form 10182) electing direct review under the Appeals Modernization Act.
- VA examinations (Oct 2016 and Mar 2020) documented treatment with an oral hypoglycemic agent and restricted diet, no required regulation of activities or insulin; neuropathy findings were primarily mild with trophic changes and decreased reflexes.
- Board found duty to assist satisfied, denied an initial rating >20% for diabetes, and increased each lower‑extremity neuropathy rating to 20% (but no higher) by resolving reasonable doubt in the Veteran’s favor.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Initial rating >20% for diabetes mellitus (DC 7913) | Diabetes warrants >20% because of complications and functional impact (regulation of activities/insulin need) | Medical records show only oral hypoglycemic + diet, no regulation of activities or insulin | Denied — 20% appropriate; no evidence of activity regulation or insulin requirement |
| Rating >10% for right lower‑extremity diabetic neuropathy (DC 8520) | Neuropathy severity approximates moderate/moderately severe incomplete paralysis warranting >10% | Exams show primarily mild sensory symptoms with some trophic changes and decreased reflexes | Granted increase to 20% (moderate incomplete paralysis) but no higher — evidence overall is primarily mild |
| Rating >10% for left lower‑extremity diabetic neuropathy (DC 8520) | Same as right leg | Same as right leg | Granted increase to 20% (moderate incomplete paralysis) but no higher — no muscle atrophy or complete paralysis |
Key Cases Cited
- Wood v. Derwinski, 1 Vet. App. 190 (Veteran must assist VA in obtaining evidence; duty to assist not one‑way)
- Schafrath v. Derwinski, 1 Vet. App. 589 (consider complete medical history for evaluation)
- Gilbert v. Derwinski, 1 Vet. App. 49 (reasonable doubt resolved in claimant's favor)
- Camacho v. Nicholson, 21 Vet. App. 360 (medical evidence required to show "regulation of activities")
- Middleton v. Shinseki, 727 F.3d 1172 (successive, cumulative criteria in diagnostic codes)
- Johnson v. Wilkie, 30 Vet. App. 245 (resolution of reasonable doubt for successive criteria)
- Hart v. Mansfield, 21 Vet. App. 505 (staged ratings where disability warrants different ratings over time)
- Miller v. Shulkin, 28 Vet. App. 376 (interpretation of peripheral nerve diagnostic code sensory vs motor limits)
- Smith v. Gober, 14 Vet. App. 227 (duty to assist principles)