judge_norm: S S TOTH

benefit: smc

text:
Citation Nr: 0933000
Decision Date: 09/02/09    Archive Date: 09/14/09

DOCKET NO.  08-24 778	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to special monthly pension benefits on the basis
of aid and attendance and/or being housebound.

ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel

INTRODUCTION

The Veteran served on active duty from April 1944 to March
1946.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2008 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, Puerto Rico.

The Board notes that the appellant submitted a claim for
death pension benefits in January 1993.  Another individual,
M.M., also submitted a claim for dependency and indemnity
(DIC)/pension benefits, claiming to be the surviving spouse
of the Veteran, in June 1993.  M.M. was held to not be the
surviving spouse and her claim was denied in April 1994.
M.M. appealed that denial but withdrew her appeal in June
1997.

The Board further notes that M.M. submitted a new claim for
entitlement to DIC/pension benefits that was received in
September 2000.  There is no indication in the claims folder
that this claim was ever processed.  The claim is referred to
the RO for such further development as may be required.

Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. � 20.900(c) (2008).  38 U.S.C.A.
� 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  The appellant is not blind or so nearly blind as to have
corrected visual acuity of 5/200 or less in both eyes, or
concentric contraction of the visual field to 5 degrees or
less; is not a patient in a nursing home because of mental or
physical incapacity; and has not established a factual need
for aid and attendance.

2.  The appellant is housebound.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to special monthly pension
based on the need for regular aid and attendance have not
been met.  38 U.S.C.A. � 1541 (West 2002); 38 C.F.R. ��
3.351, 3.352 (2008).

2.  The criteria for entitlement to special monthly pension
based on being housebound have been met.  38 U.S.C.A. � 1541;
38 C.F.R. �� 3.351, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Background

The Veteran served on active duty from April 1944 to March
1946.  He died in January 1993.  The appellant is his
surviving spouse and has been receiving death pension
benefits since January 1993.

The appellant initiated her current claim by submitting a
medical assessment prepared by a Dr. E. J. Pacheco that was
received in November 2007.  Several diagnoses were listed as
follows: degenerative joint disease (DJD) of the knees,
osteoarthritis, diabetes mellitus type II and essential
hypertension.  The appellant was noted to require the use of
a cane or walker to assist her in walking.  She was able to
feed herself, care for the needs of nature, and sit up.  She
was not confined to bed.  She was said to require assistance
in bathing and tending to other hygiene needs.  The appellant
was not considered blind.  Dr. Pacheco noted that the
appellant required prescription eyeglasses.  Dr. Pacheco said
the appellant could not travel or leave home without
assistance as she needed help to walk and to get in, and out
of, a car.  In regard to a question of whether the appellant
required nursing home care Dr. Pacheco said the appellant was
not completely bedridden.

The evaluation also included a report for x-rays of the
knees.  The findings of DJD of the knees was addressed by Dr.
Pacheco as one of his diagnoses.

The RO wrote to the appellant in December 2007.  She was
asked to provide medical evidence to show that she required
the aid and attendance of another person in performing her
activities of daily living, that she was severely visually
impaired, or was permanently housebound.

The appellant was afforded a VA examination in December 2007.
The appellant was noted to be 77 and she lived with her 47-
year old son in a one-story house.  The examiner noted that
the appellant had diagnoses of osteoporosis, diabetes
mellitus, and osteoarthritis.  He listed her several
medications.  The examiner noted that the appellant was not
bedridden or hospitalized.  She had traveled to the
examination by way of a private automobile with a family
member.  The appellant described her daily activities as
including preparing breakfast, and watching television or
taking naps in the morning.  She would also make lunch.
Chores such as cleaning the house or hanging laundry was done
by her son.  She used a one-point cane to assist her in
walking.  In regard to assessing her ability to protect
herself from daily hazards/dangers the appellant did not
suffer from dizziness and had no memory loss.  Her imbalance
did constantly affect her ability to ambulate.  The examiner
said there were other body parts or system impairments that
affected the appellant's ability to protect herself from the
daily environment.  These were described as frequent falls,
as related by the appellant, related to her bilateral
arthritis of the knees and shoulders.  The examiner said the
appellant could perform all self-care functions.

The appellant could walk without the assistance of another
person within her home.  She was noted to leave her home only
for medical care.  The appellant did not have visual acuity
of 5/200 or worse.  The examiner said the appellant's
functional impairments were permanent.  The examiner said
that the appellant had mild or moderate impairment of both
upper extremities due to limitations of strength and
coordination.  He said she could feed herself but that she
had marked difficulty in dressing and undressing and in
bathing.  There was some difficulty in self-grooming and
toileting.  The appellant was also said to have some
limitations in her lower extremities due to crepitance and
pain in the knees.  As previously noted the appellant
required the use of a cane for assistance in walking, weight
bearing, and balance.  X-rays of the knees showed moderate
bilateral DJD.  X-rays of the shoulders showed calcific
peritendinitis, mild bilateral acromioclavicular DJD, and
right mild glenohumeral DJD.

In regard to mental competency the examiner said the
appellant knew the amount of her payment and prudently
handled her payments.  She knew the amounts of her monthly
bills and personally handled her money and paid her bills.
The examiner said that the appellant had adequate cognitive
function to manage her personal financial affairs.

The final diagnoses were diabetes mellitus II, poorly
controlled, bilateral osteoarthritis of the knees,
osteoporosis by history, bilateral osteoarthritis of the
shoulders, bilateral peritendinitis of the shoulders, and
uncontrolled hypertension.

The RO denied the claim in January 2008.  The appellant
appealed the denial in August 2008.  She stated that she
could not go anywhere without the help of another person.
She also said that she needed an assistant to bathe her and
for other needs of life.

II.  Analysis

The surviving spouse of a veteran of a period of war is
entitled to a pension subject to the amount of the spouse's
annual income.  The pension rate may be increased if the
spouse is in need of regular aid and attendance.  If the
spouse is not in need of aid and attendance, the pension rate
may be increased if the spouse is permanently housebound.
38 U.S.C.A. � 1541 (West 2002); 38 C.F.R. � 3.351 (a) (2008).

The need for aid and attendance is defined as helplessness or
being so nearly helpless as to require the regular aid and
attendance of another person.  38 C.F.R. � 3.351(b).  The
appellant will be considered in need of aid and attendance if
she is (1) blind or so nearly blind as to have corrected
visual acuity of 5/200 or less, in both eyes, or concentric
contraction of the visual field to 5 degrees or less; (2) is
a patient in a nursing home because of mental or physical
incapacity; or (3) establishes a factual need for aid and
attendance under the criteria set forth in 38 C.F.R. �
3.352(a) (2008).  38 C.F.R. � 3.351(c).

The following criteria will be considered in determining the
factual need for regular aid and attendance: the inability of
a claimant to dress or undress herself, or to keep herself
ordinarily clean and presentable; frequent need of adjustment
of any special prosthetic or orthopedic appliances which by
reason of the particular disability cannot be done without
aid (this will not include the adjustment of appliances which
normal persons would be unable to adjust without such aid,
such as supports, belts, lacing at the back, etc.); the
inability of a claimant to feed herself through loss of
coordination of upper extremities or through extreme
weakness; inability to attend to the wants of nature; or
incapacity, physical or mental, which requires care or
assistance on a regular basis to protect the claimant from
hazards or dangers incident to her daily environment.  38
C.F.R. � 3.352(a).

It is not required that all of the disabling conditions
enumerated be found to exist before a favorable ruling may be
made.  The particular personal functions which the appellant
is unable to perform should be considered in connection with
her condition as a whole.  It is only necessary that the
evidence establish that the appellant is so helpless as to
need regular aid and attendance, not that there be a constant
need.  Determinations that the appellant is so helpless as to
be in need of regular aid and attendance will not be based
solely on an opinion that the appellant's condition is such
that it would require her to be in bed.  They must be based
on the actual requirements of personal assistance from
others.  38 C.F.R. � 3.352.

A surviving spouse is permanently housebound when she is
substantially confined to her home or immediate premises by
reason of disabilities which are reasonably certain will
remain throughout the surviving spouse's lifetime.
38 U.S.C.A. � 1541 (e); 38 C.F.R. � 3.351 (f).

The appellant is the surviving spouse of a qualifying
veteran.  The appellant asserts that she requires the
assistance of another to perform activities of daily living
such as bathing.  She contends that she is confined to her
house.

The evaluation from Dr. Pacheco does not support a finding
that the appellant requires regular aid and attendance.  She
does require the assistance of a cane to ambulate but is able
to walk.  She is able to feed herself, sit up, and care for
the needs of nature.  She does require some assistance for
bathing and hygiene.  She is not blind, is not a patient in a
nursing home and is not bedridden.  The evaluation noted that
the appellant could not travel and could only leave home with
assistance.

The January 2008 VA examination report provided similar
findings.  The appellant was not bedridden or hospitalized.
The appellant was able to walk with the assistance of a cane.
This was limited to the confines of her house.  She was able
to prepare food for herself.  She was able to feed herself
without any problems and could perform all functions related
to self-care.  The examiner did note that the appellant had
marked difficulty with dressing and self-bathing and some
difficulty with grooming and toileting.  The appellant was
noted to have an imbalance that affected her ability to
ambulate.  She provided a self-report of falls due to her
problems with her knees and shoulders.  There was no evidence
of any type of injury from a fall or report of treatment for
same in the record.

The examiner did note that the appellant could travel beyond
her domicile but did not comment on the requirement for
assistance to do so.  The appellant had no mental impairment
as per the examination report.

The Board finds that the evidence of record does not support
a finding that the appellant is blind or so nearly blind as
to have corrected visual acuity of 5/200 or less in both
eyes, or concentric contraction of the visual field to 5
degrees or less; or is a patient in a nursing home because of
mental or physical incapacity.  Further, the evidence does
not support a finding that the appellant meets the
requirements for regular aid and attendance.  Although she
was noted as having some difficulty with activities such as
dressing, bathing and grooming, she was able to accomplish
those actions.  She was noted to live with her son.  At no
time did she report that he provided assistance to her in any
area of difficulty such as feeding, dressing, grooming, or
attending to the wants of nature, and there was no
identification of anyone else providing assistance.

The appellant did state on her substantive appeal that she
required assistance with bathing and the everyday activities
of life.  She did not amplify on what activities she needed
help with, but it is noted that during the VA examination she
reported that her son cleaned the house, hung the clothes out
to dry, and grocery shopped.  The Board acknowledges the
appellant's assessment of her difficulty in performing some
of the activities of daily living but finds the VA
examination report and the assessment of the physician highly
probative as to the activities she can accomplish.  Two
practitioners assessed her as able to accomplish the acts of
dressing, grooming, feeding and attending to the wants of
nature on her own.  While the appellant reported that she was
at risk of falls due to her disabilities, this alone does not
show that she is so helpless as to need the regular aid and
attendance of another person.  In that regard, the Board
notes that the VA examiner reported that she was able to
ambulate in the home without the assistance of another
person, that she lives in a one-story house, and uses a cane
and a walker to ambulate.  She was unable, however, to leave
her home except for medical appointments.  Housebound
benefits have been granted below on that basis.  Accordingly,
her claim for entitlement to special monthly pension on the
basis of aid and attendance is denied.

In regard to housebound benefits, the Board finds that the
evidence supports a conclusion that the appellant is
housebound.  Dr. Pacheco noted that the appellant travels
only for medical appointments and requires someone else to
take her.  The VA examiner noted that the appellant was
brought to her appointment by a family member.  She did not
go out to do any grocery shopping.  The appellant is said to
walk within her house and there is no evidence of her walking
outside of the house or engaging in any type of activity
outside.  There is no evidence of her engaging in any
activity, other than medical appointments, away from the
house.  The evidence of the appellant's disabilities
involving her knees and shoulders, as well as her other
medical conditions, support the conclusion that she is
housebound for all activities except for her needed medical
appointments.  The VA examiner stated that the conditions
were permanent.  Thus, her claim for special monthly pension
benefits, on the basis of being housebound, is granted.

The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits.  The
Board is unable to identify a reasonable basis for granting
special monthly pension benefits on the basis of aid and
attendance.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58
(1990); 38 U.S.C.A. � 5107(b) (West 2002); 38 C.F.R. � 3.102
(2008).

The Veterans Claims Assistance Act (VCAA), codified in
pertinent part at 38 U.S.C.A. �� 5103, 5103A (West 2002 &
Supp 2009), and the pertinent implementing regulation,
codified at 38 C.F.R. � 3.159 (2008), provides that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim.  They also require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim.  As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant.  Notice which
informs the claimant of how VA determines disability ratings
and effective dates should also be provided.  See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The appellant's claim was received in November 2007.  The RO
wrote to her to provide the required notice in December 2007.
She was advised of the evidence required to establish the
need for aid and attendance or to show that she was
housebound.  The letter gave specific examples of evidence
required and listed the regulatory requirements that had to
be met in order to establish entitlement.  The letter also
provided the regulatory provisions applicable to the claim.
She was advised of the information required from her to
enable VA to obtain evidence on her behalf, the assistance
that VA would provide to obtain evidence on her behalf, and
that she should submit such evidence or provide VA with the
information necessary for VA to obtain such evidence on her
behalf.

The appellant's claim was denied in January 2008.  She
immediately disagreed with the denial and perfected her
appeal in August 2008.  She expressed her knowledge of the
evidence required to substantiate her claim by her contention
of requiring the assistance of another person to perform
activities of daily living.

The appellant has not disputed the contents of the VCAA
notice in this case.  She was afforded a meaningful
opportunity to participate in the development of her claim.
From the outset she demonstrated actual knowledge of what was
required to establish entitlement to the benefits sought by
submitting an aid and attendance examination with her claim.
While the notice required pursuant to Dingess was not
provided until November 2008, there is no error in the late
timing as aid and attendance benefits are being denied and
therefore no effective date will be assigned.  Regarding the
grant of housebound benefits, the appellant still has an
opportunity to provide argument to the RO concerning the
effective date.  There is no evidence of prejudice to the
appellant based on any notice deficiency and she has not
alleged any prejudice.  Thus, the Board is satisfied that the
duty to notify requirements under 38 U.S.C.A. � 5103(a) and
38 C.F.R. � 3.159(b) were satisfied

The Board also finds that VA has adequately fulfilled its
obligation to assist the appellant in obtaining the evidence
necessary to substantiate her claim.  All available evidence
pertaining to the appellant's claim has been obtained.  The
evidence includes her private examination report as well as
the VA examination provided to her.  Her lay statements are
also included.  The appellant elected to not have a hearing
in her case.  The Board finds that VA has satisfied its duty
to notify and assist.  The appellant has not identified any
other pertinent evidence, not already of record.  The Board
is also unaware of any such evidence.

ORDER

Entitlement to special monthly pension for aid and attendance
is denied.

Entitlement to special monthly pension, for housebound
status, is granted subject to the laws and regulations
governing the payment of monetary benefits.

____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: JOHN C CROWLEY

disposition: remanded

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).

text:
Citation Nr: 1001000
Decision Date: 01/07/10    Archive Date: 01/15/10

DOCKET NO.  08-05 267	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado

THE ISSUE

Entitlement to benefits under 38 U.S.C.A. � 1805 for a child
born with spina bifida.

REPRESENTATION

Appellant represented by:	Mississippi Veterans Affairs
Commission

ATTORNEY FOR THE BOARD

T. Mainelli, Counsel

INTRODUCTION

The Veteran served on active duty from January 1967 to March
1971.  The appellant is the Veteran's son.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from a July 2006 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Denver,
Colorado.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

A claimant is accorded full right to representation in all
stages of an appeal by a recognized organization.  38 C.F.R.
� 20.600.  In July 2007, the Veteran's son appointed the
Missouri Veterans Commission as his accredited representative
by a properly executed VA Form 21-22 (Appointment of Veterans
Service Organization as Claimant's Representative).

A review of the claims file indicates that the Missouri
Veterans Commission has not submitted a Statement of
Accredited Representation in Appealed Case (VA Form 1-646)
prior to the RO certifying the case to the Board in September
2009.  In fact, it does not appear that the Missouri Veterans
Commission has been recognized as the accredited
representative in this case.  The September 2009
Certification of Appeal (VA Form 8) leaves blank the sections
indicating whether the Veteran's son is represented and
whether such representative was afforded the opportunity to
submit a VA Form 646 or equivalent.

In the interest of due process and fairness, the RO must
afford the Veteran's representative an opportunity to submit
argument in support of the claim on appeal.  38 C.F.R.
� 20.600.

Accordingly, the case is REMANDED for the following action:

The RO/AMC should solicit and document its
efforts to obtain a completed VA Form 646, or
equivalent, from the claimant's representative
prior to recertifying the appeal to the Board.
The representative should be offered the
opportunity to review the claims folder as
needed.  If, for some reason contact cannot be
made with the representative, the claimant should
be so notified to ensure that his due process
rights are protected.  Further adjudication
should then be undertaken in accordance with
applicable procedures.

The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded.  Kutscherousky
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2009).

_________________________________________________
JOHN C. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2009).


judge_norm: C CRAWFORD

disposition: dismissed

text:
Citation Nr: 1002000
Decision Date: 01/12/10    Archive Date: 01/22/10

DOCKET NO.  07-34 709A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California

THE ISSUE

Entitlement to the repair or replacement of an inground pool
heater through Independent Living Services.

(The issue of an increased rating for the Veteran's service-
connected post-traumatic right wrist derangement, as well as
that of an effective date earlier than September 22, 2009 for
the award of service connection for right and left shoulder
disabilities will be addressed in a separate decision.)

ATTORNEY FOR THE BOARD

S. F. S., Counsel

INTRODUCTION

The Veteran served on active duty from January 1968 to
June 1969.

This case comes before the Board of Veterans' Appeals (Board)
on appeal of an April 2007 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Los Angeles,
California.

Good or sufficient cause having been shown, the Veteran's
appeal has been advanced on the Board's docket under the
provisions of 38 C.F.R. � 20.900(c) (2009).

This case was previously before the Board in December 2008,
at which time it was remanded for additional development.
The case is now, once more, before the Board for appellate
review.

The Board notes that, in correspondence of October 2009, the
Veteran withdrew from consideration the issue of entitlement
to the repair or replacement of an inground pool heater
through Independent Living Services.  Accordingly, that issue
will be dismissed.

FINDING OF FACT

In correspondence of October 2009, the Veteran requested
withdrawal of the issue of entitlement to the repair or
replacement of an inground pool heater through Independent
Living Services.

CONCLUSION OF LAW

The criteria for withdrawal of the Veteran's Substantive
Appeal on the issue of entitlement to the repair or
replacement of an inground pool heater through Independent
Living Services have been met.  38 U.S.C.A. �� 5103(a),
5103A, 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R.
�� 20.202, 20.204(b)(c) (2009).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. � 7105 (West 2002 & Supp. 2009), the Board
may dismiss any appeal which fails to allege specific error
of fact or law in the determination being appealed.  A
Substantive Appeal may be withdrawn in writing at any time
before the Board promulgates a decision.  38 C.F.R.
�� 20.202, 20.204(b) (2009).  Except for appeals withdrawn on
the record at a hearing, appeal withdrawals must be in
writing.  38 C.F.R. � 20.204(c) (2009).

In the case at hand, in correspondence of October 2009, the
Veteran withdrew from consideration the issue of entitlement
to the repair or replacement of an inground pool heater
through Independent Living Services.  As the Veteran has
withdrawn his appeal on that issue, there remain no
allegations of fact or law for appellate consideration.
Accordingly, the Board does not have jurisdiction to review
the appeal on that issue, and it is dismissed without
prejudice.

ORDER

The appeal as to the issue of entitlement to the repair or
replacement of an inground pool heater through Independent
Living Services is dismissed.

____________________________________________
	C. CRAWFORD
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JONATHAN B KRAMER

disposition: denied

condition: diabetes

condition: radiculopathy

text:
Citation Nr: 1003000
Decision Date: 01/20/10    Archive Date: 02/01/10

DOCKET NO.  05-40 649	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent
for diabetes mellitus.

2.  Entitlement to a separate rating in excess of 10 percent
for peripheral neuropathy of the left lower extremity
secondary to diabetes mellitus, from October 5, 2005 to
August 5, 2009, and in excess of 20 percent thereafter.

3.  Entitlement to a separate rating in excess of 10 percent
for peripheral neuropathy of the right lower extremity
secondary to diabetes mellitus, from October 5, 2005 to
August 5, 2009, and in excess of 20 percent thereafter.

4.  Entitlement to a separate compensable rating for
peripheral neuropathy of the left upper extremity secondary
to diabetes mellitus.

5.  Entitlement to a separate compensable rating for
peripheral neuropathy of the right upper extremity secondary
to diabetes mellitus.

REPRESENTATION

Appellant represented by:	Georgia Department of Veterans
Services

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Timothy D. Rudy, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1968 to July
1978.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2004 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida, which granted service connection
for diabetes mellitus with nephropathy, retinopathy, and
erectile dysfunction and awarded a 20 percent disability
rating.  Subsequently, the claims file was transferred to the
jurisdiction of the RO in Atlanta, Georgia.  The Board
remanded this issue for additional development in September
2008.

In June 2008, the Veteran testified during a Board hearing
before the undersigned Veterans Law Judge at the RO.  A
transcript of the hearing is of record.  During the hearing,
the Veteran withdrew any claims that his diabetic
complications included retinopathy or cardiovascular
difficulties (see transcript at pp. 9-11).

Where, as is the case here, an award of service connection
for a disability has been granted and the assignment of an
initial rating for that disability is disputed, separate
ratings may be assigned for separate periods of time based on
the facts found.  In other words, the ratings may be
"staged."  Fenderson v. West, 12 Vet. App. 119, 125-26
(1999).  Further, the Veteran has been granted separate
ratings for peripheral neuropathy of his lower extremities,
has not withdrawn his claim for an increased initial rating
for diabetes and its complications, and is presumed to be
seeking the maximum benefits allowed by law and regulation.
AB v. Brown, 6 Vet. App. 35, 38 (1993).  Such consideration
is reflected by the characterization of the claim as shown on
the title page.

FINDINGS OF FACT

1.  The Veteran's diabetes mellitus is not manifested by a
regulation of activities; the evidence of early nephropathy
and of erectile dysfunction is not manifested to the level of
separately compensable diabetic complications under the
applicable schedular criteria.

2.  From October 5, 2005 to August 4, 2009, the Veteran's
peripheral neuropathy of the left lower extremity is not
manifested by moderate incomplete paralysis of the external
popliteal nerve.

3.  From August 5, 2009, the Veteran's peripheral neuropathy
of the left lower extremity is not manifested by severe
incomplete paralysis of the external popliteal nerve.

4.  From October 5, 2005 to August 4, 2009, the Veteran's
peripheral neuropathy of the right lower extremity is not
manifested by moderate incomplete paralysis of the external
popliteal nerve.

5.  From August 5, 2009, the Veteran's peripheral neuropathy
of the right lower extremity is not manifested by severe
incomplete paralysis of the external popliteal nerve.

6.  The Veteran's peripheral neuropathy of the left upper
extremity is not manifested by mild incomplete paralysis of
the median nerve.

7.  The Veteran's peripheral neuropathy of the right upper
extremity is not manifested by mild incomplete paralysis of
the median nerve.

CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 20
percent for diabetes mellitus have not been met.  38 U.S.C.A.
�� 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38
C.F.R. �� 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119,
Diagnostic Code 7913 (2009).

2.  The criteria for a rating in excess of 10 percent for
peripheral neuropathy of the left lower extremity secondary
to diabetes mellitus, from October 5, 2005 to August 5, 2009,
and in excess of 20 percent thereafter, have not been met.
38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2009); 38 C.F.R. �� 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10,
4.124a, Diagnostic Codes 8521, 8621 (2009).

3.  The criteria for a rating in excess of 10 percent for
peripheral neuropathy of the right lower extremity secondary
to diabetes mellitus, from October 5, 2005 to August 5, 2009,
and in excess of 20 percent thereafter, have not been met.
38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2009); 38 C.F.R. �� 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10,
4.124a, Diagnostic Codes 8521, 8621 (2009).

4.  The criteria for a compensable rating for peripheral
neuropathy of the left upper extremity secondary to diabetes
mellitus have not been met.  38 U.S.C.A. �� 1155, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.159,
3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8615
(2009).

5.  The criteria for a compensable rating for peripheral
neuropathy of the right upper extremity secondary to diabetes
mellitus have not been met.  38 U.S.C.A. �� 1155, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. �� 3.159,
3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8615
(2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a) and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court), have been fulfilled
by information provided to the Veteran in letters from the RO
dated in October 2003, January 2006, April 2006, and November
2008.  These letters notified the Veteran of VA's
responsibilities in obtaining information to assist the
Veteran in completing his claim, and identified the Veteran's
duties in obtaining information and evidence to substantiate
his claim.  (See 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002),
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also
Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006),
Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006);
Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537
(2006)).

During the pendency of this appeal, the Court in
Dingess/Hartman found that the VCAA notice requirements
applied to all elements of a claim.  An additional notice as
to these matters was provided in the April 2006 and November
2008 correspondence.

The Board notes that on remand the RO requested the Veteran
to complete and sign a VA Form 21-4142 (Authorization to
Release Information to the VA) in order to obtain medical
records from his private physician, Dr. B.W., including those
dated after March 2005, which have not been previously
secured, but that the Veteran did not respond.  The Court has
held that VA's "duty to assist is not always a one-way
street."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
If a Veteran wishes help he cannot passively wait for it in
those circumstances where he may or should have information
that is essential in obtaining relevant evidence.

The Board finds that the notice requirements pertinent to the
issue on appeal have been met.  The duty to assist also has
been fulfilled as all identified and authorized VA and
private medical records relevant to this matter have been
requested and the Veteran was provided with multiple VA
examinations.  The Board finds that the available medical
evidence is sufficient for an adequate determination.  There
has been substantial compliance with all pertinent VA laws
and regulations and to move forward with this claim would not
cause any prejudice to the appellant.

Increased Ratings - Laws and Regulations

Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4.  The percentage ratings 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 conditions in civil occupations.
38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.1 (2009).

In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the Veteran's condition.  Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991).  The Court has held
that a claim for a higher rating when placed in appellate
status by disagreement with the original or initial rating
award (service connection having been allowed, but not yet
ultimately resolved), remains an "original claim" and is
not a new claim for an increased rating.  See Fenderson v.
West, 12 Vet. App. 119 (1999).  In such cases, separate
compensable evaluations may be assigned for separate periods
of time if such distinct periods are shown by the competent
evidence of record during the pendency of the appeal, a
practice known as "staged" ratings.  Id. at 126.

It is the responsibility of the rating specialist to
interpret reports of examination in light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability present.  38 C.F.R. � 4.2
(2009).  Consideration of factors wholly outside the rating
criteria constitutes error as a matter of law.  Massey v.
Brown, 7 Vet. App. 204, 207-08 (1994).  Evaluation of
disabilities based upon manifestations not resulting from
service-connected disease or injury and the pyramiding of
ratings for the same disability under various diagnoses are
prohibited.  38 C.F.R. � 4.14 (2009).

When there is a question as to which of two evaluations to
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating, otherwise the lower rating shall be
assigned.  38 C.F.R. � 4.7 (2009).

It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence.  38 C.F.R. � 4.3 (2009).

By way of the March 2004 rating decision under appeal, the
Veteran was granted service connection for diabetes mellitus
with nephropathy, retinopathy and erectile dysfunction and
awarded a 20 percent rating, effective October 14, 2003, the
date he filed his claim for service connection.  The
disability rating was awarded pursuant to the provisions of
38 C.F.R. � 4.119, Diagnostic Code 7913 (2009).

Under the applicable criteria, a 20 percent rating is
warranted if diabetes mellitus requires insulin and a
restricted diet, or an oral hypoglycemic agent and a
restricted diet.  A 40 percent rating requires insulin, a
restricted diet, and regulation of the Veteran's activities
(avoidance of strenuous occupational and recreational
activities).  A 60 percent rating requires insulin, a
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, and complications that would not be
compensable if separately evaluated.  Finally, a 100 percent
rating requires more than one injection of insulin daily, a
restricted diet, 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, and either progressive loss of weight
and strength or complications that would be compensable if
separately evaluated.  38 C.F.R. � 4.119, Diagnostic Code
7913.  A note to the rating criteria instructs that
compensable complications of diabetes should be evaluated
separately unless they are part of the criteria used to
support a 100 percent rating and that noncompensable
complications are considered part of the diabetic process
under Diagnostic Code 7913.  38 C.F.R. � 4.119, Diagnostic
Code 7913, Note 1 (2009).

Service connection and separate ratings for peripheral
neuropathy of the Veteran's lower extremities were granted in
a March 2006 RO rating decision wherein the Veteran was
awarded separate 10 percent disability ratings for the left
and for the right lower extremity.  In an October 2009 rating
decision, the RO increased these disability ratings from 10
percent to 20 percent under the provisions of Diagnostic Code
7913-8521.

Under the provisions of Diagnostic Code 8521, for incomplete
paralysis of the external popliteal nerve in the lower
extremities, and the like Diagnostic Code 8621 for neuritis,
a rating of 10 percent is for mild incomplete paralysis, a 20
percent rating is for moderate incomplete paralysis, and a 30
percent rating is for severe incomplete paralysis of the
external popliteal nerve.  38 C.F.R. � 4.124a, Diagnostic
Code 8521 and 8621 (2009).

The criteria for evaluating the severity or impairment of the
median nerve in the upper extremities is set forth under
Diagnostic Codes 8515, and the like Diagnostic Code 8615 for
neuritis of the same.  Under these codes, a 10 percent rating
is warranted for mild incomplete paralysis of the median
nerve.  A 20 percent rating is warranted for moderate
incomplete paralysis of the minor extremity and a 30 percent
rating is warranted for moderate incomplete paralysis of the
median nerve in the major extremity.  A 40 percent rating
requires severe incomplete paralysis of the median nerve in
the minor extremity, and a 50 percent rating is warranted for
severe incomplete paralysis of the median nerve in the major
extremity.  38 C.F.R. � 4.124a, Diagnostic Codes 8515 and
8615 (2009).

The words such as "moderate" and "severe" are not defined
in the Rating Schedule.  Rather than applying a mechanical
formula, the Board must evaluate all of the evidence to the
end that its decisions are "equitable and just."  38 C.F.R.
� 4.6 (2009).  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.  38 C.F.R. � 4.124a.  When the
involvement is wholly sensory, the rating should be for the
mild, or at most, the moderate degree.  Id.

Factual Background and Analysis

In a November 2003 Physician's Statement from B.W., D.O., the
Veteran's private physician checked boxes indicating the
following: that the Veteran had been diagnosed with adult
onset diabetes mellitus, type II; that his diabetes required
insulin and restricted diet or oral hypoglycemic agent and
restricted diet; and that peripheral atherosclerosis with
bypass was a complication directly due to diabetes.

Assessments in private medical records from Dr. B.W., dated
from January 2004 to February 2005, indicated a diagnosis of
diabetes mellitus, type II, and peripheral vascular disease.

The Veteran underwent a fee-basis VA examination in January
2004.  It was noted that he had been diagnosed with diabetes
mellitus about 6 years before during an evaluation for
peripheral vascular disease of the left leg and had been on
medication since.  He was currently taking Actos twice a day
and Amaryl twice a day.  There was no history of diabetic
ketoacidosis and he did not have a problem with hypoglycemia.
On average he visited a doctor four times a year for
diabetes.  During the day the Veteran urinated six times at
intervals of two hours and during the night he urinated once
every four hours.  He did not have any urinary incontinence.
He complained of tingling and numbness of the feet, but
stated that the diabetes did not affect the eyes, the skin,
the heart, or the kidneys.  It had affected the arteries for
six years resulting in intermittent claudication.  He
experienced leg pain after walking 200 feet.  The artery
problem was treated with surgery in 1998 and Plavix.  The
Veteran complained of no functional impairment from his
condition or any lost time from work.  He did complain of
impotence which began six years before.  He said that he
could not achieve and maintain an erection and that vaginal
penetration with ejaculation was not possible.  Treatment
with Viagra helped to some extent.

On examination, the Veteran stood 73 inches and weighed 248
pounds.  He was well-developed, well-nourished and in no
acute distress.  Retinopathy was present in both eyes with
findings of small exudates.  Peripheral pulses bilaterally
were normal.  Motor and sensory functions of the extremities
were within normal limits.  Reflexes of the bilateral lower
and upper extremities were normal.  Examination revealed
normal arterial pulsations of the lower extremities and no
evidence of an obstructive peripheral vascular disease of the
lower extremities.  Diagnostic tests showed elevated glucose
at 237 mg/dl and urinalysis showed protein present.

Diagnosis was diabetes mellitus, type II with diabetic
nephropathy, diabetic retinopathy and impotence.

A fee basis VA examination of the eyes in February 2004 found
no diagnosis of diabetic retinopathy because the examiner
found no pathology with which to render a diagnosis.
Keratoconus was not present and the Veteran did not have
diplopia.  The Veteran reported no symptoms of distorted
vision, enlarged images, pain, or incapacitation.  An
additional fee basis VA examination of the eyes in September
2005 found none of the ocular complications of diabetes
mellitus.  The examiner diagnosed hyperopia and presbyopia.

VA medical records dated from November 2004 to May 2009
reveal the Veteran's treatment for his diabetes and
complications from the disease, including occasional
medication adjustments and diet counseling, and his start on
insulin in November 2006.

The Veteran underwent a fee-basis VA examination in October
2005.  It was noted that the Veteran did not have a history
of diabetic ketoacidosis or problems with hypoglycemia.  He
was treated with medication: Actos once per day and Amaryl
twice per day.  On average he visited a doctor four times a
year for diabetes.  During the day he urinated 12 times at
one hour intervals and during the night he urinated twice at
three-hour intervals.  The Veteran complained of tingling and
numbness in his fingers and toes, but said that the diabetes
did not affect his eyes, skin, or heart.  He complained of an
effect on the arteries for seven years causing intermittent
claudication, calf pain at rest and persistent coldness of
the extremities.  There was no functional impairment of the
kidneys or time lost from work, but the Veteran complained of
impotence beginning eight years before.  He could not achieve
and maintain an erection and vaginal penetration with
ejaculation was not possible.

On examination, the Veteran stood five feet, 11 inches and
weighed 246 pounds.  He was well developed, well nourished
and in no acute distress.  Examination of the eyes, including
the funduscope, was within normal limits.  Examination of the
extremities did not reveal atrophic skin changes, ulceration,
gangrene, ischemic limb pain or persistent coldness.
Bilateral peripheral pulses were normal.  Peripheral nerve
examination was within normal limits.  Motor and sensory
functions of the bilateral upper extremities were normal.
Motor functions of the lower extremities also were normal,
but sensory function was abnormal with findings of decreased
vibratory sensation in both feet.  Bilateral knee jerk and
ankle jerk were measured at 1+.  Diagnostic tests showed a
glucose level of 193 and the urinalysis showed the presence
of sugar and the absence of protein.  Diagnosis was diabetes
mellitus, type II, and peripheral neuropathy of the lower
extremities secondary to diabetes with the neurological
condition resulting in neuritis.  The diabetes did not cause
any restriction of activities and the Veteran did not have a
non-diabetic condition aggravated by diabetes.  The examiner
failed to diagnose nephropathy because he found there was no
pathology with which to render a diagnosis.

A Physician's Statement dated in February 2006 from Dr. B.W.
indicated that the Veteran required insulin and a restricted
diet or an oral hypoglycemic agent and a restricted diet for
his diabetes and that he suffered cardiovascular and
neurological complications directly due to his diabetes.

During his June 2008 Board hearing, the Veteran, a baggage
handler for Delta Airlines, testified that he had no problem
with his eyes and was not claiming any cardiovascular
difficulties as a result of his diabetes.  He said that he
thought that a doctor had told him that his erectile
dysfunction and kidney problems were related to his diabetes.
He testified that he was constantly urinating and that his
doctor had given him pills for an enlarged prostate, but that
they made him dizzy and he did not like the way they made him
feel.  He also said his doctor refused his request for
Levitra for his erectile dysfunction because she did not know
if he was healthy enough for sex.  After further testing he
was put on an Ace inhibitor.  The Veteran also testified that
his fingertips and part of his hand become numb and his
fingers tingled, worse in the winter, and that it was
difficult to keep his hands warm.  (See transcript at pp. 4-
5, 9-13).

A Physician's Statement form completed by a VA physician in
June 2008 reflected that the Veteran's diabetes mellitus
required insulin, restricted diet, and regulation of
activities.  The VA physician did not provide further
information on the form, however, regarding the regulation of
activities.

The Veteran underwent a VA examination in March 2009.  He
told the examiner that he had no episodes of ketoacidosis,
hyperglycemia or hypoglycemic reactions and had not been
hospitalized for his diabetes.  He said that he did not check
his blood glucose levels on a regular basis and tried to
follow a carbohydrate restricted diet.  He reported weight
loss which he believed was stress related to his father's
illness.  It was noted that the Veteran faced no restriction
on his activities on account of his diabetes.  He was seen by
his VA primary provider every three months and was currently
treated with NPH insulin and Glipizide.  He did not report a
history of retinopathy, cataracts, glaucoma or other eye
conditions.  He reported erectile dysfunction for 13 years,
that he was unable to achieve or maintain an erection for
successful vaginal intercourse, that he and his wife were
last able to have successful sexual vaginal intercourse 2 or
3 years before, and that he had used Levitra in the past but
was unable to maintain an erection for intercourse.  The
Veteran did not report a history of nephropathy, but said
that he urinated every 30 minutes and had done so for years
during the day and is up 2 to 3 times at night.  He also
reported he did not exercise and smoked cigarettes.  The
Veteran complained of burning in his fingertips and in his
feet as well as numbness in his hands and feet with cold
weather.  He reported no edema, achiness or fatigue in the
legs, he had no vericose veins and did not report wearing
compression stockings.

On physical examination, the Veteran appeared well developed,
well nourished and in no apparent distress.  Diminished
pinprick was noted on both the examination of the hands and
fingertips and both feet.  Feet reflexes were brachial 1+
bilaterally, downgoing; plantar reflexes and Achilles
reflexes bilaterally were normal; and dorsalis pedis and
posterior tibial pulses were 1+ bilaterally.  Diagnostic
tests showed a glucose level of 302.

Diagnosis was diabetes mellitus without any cardiovascular,
eye, skin, or bowel complications.  Evidence of erectile
dysfunction was more likely than not multifactorial based on
a combination of age, stress, depression and diabetes.
Bilateral upper and lower extremity peripheral neuropathy was
at least as likely as not related to diabetes.  The examiner
noted the diminished pinprick sensation in all extremities
and that the Veteran had failed the monofilament test and was
prescribed Neurontin for his symptoms.  The VA examiner also
diagnosed early nephropathy that was at least as likely as
not related to his diabetes.  The nephropathy was manifested
by urine microalbuminuria in the presence of a normal
creatinine level.  The examiner also found that the Veteran's
peripheral vascular disease, with the prior left leg bypass
surgery, was at least as likely as not related to his
diabetes.

The Veteran underwent a VA peripheral nerves examination in
August 2009.  Motor and sensory findings were consistent with
moderate to severe chronic mixed sensory motor polyneuropathy
affecting bilateral lower extremities, most likely due to
diabetes.  The VA examiner noted that peripheral neuropathy
was limited to the lower extremities and that upper extremity
studies were normal.  Progression of peripheral neuropathy to
the upper extremities, however, could occur at a later stage.
The examiner recommended preventive foot care, diabetic
shoes, weight control, and a daily exercise program.

Based upon the evidence of record, the Board finds the
Veteran's service-connected diabetes is manifested by no more
than the required use of an oral hypoglycemic agent, insulin,
and a restricted diet.  There is no probative and competent
evidence of the regulation of activities because of diabetes.
The competent medical evidence of record does not reflect
that the Veteran's diabetes requires medically directed
"regulation of activities," defined in Diagnostic Code 7913
as "avoidance of strenuous occupational and recreational
activities".  The June 2008 Physician's Statement completed
by a VA physician is the only evidence that the Veteran's
activities had to be regulated due to diabetes.  Moreover,
this physician failed to provide further information as VA
had requested on the form.  Further, VA medical records dated
from November 2004 to May 2009 reveal no evidence of
regulation of activities due to diabetes.  Nor is there any
evidence of episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or
twice a month visits to a diabetic care provider, or a
progressive loss of weight and strength because of this
disorder.  Therefore, the Board finds that an initial rating
in excess of 20 percent for the Veteran's service-connected
diabetes mellitus is not warranted.

The Board also notes that the June 2005 VA examiner failed to
diagnose diabetic nephropathy and the March 2009 VA examiner
diagnosed only early nephropathy.  Both opinions suggest that
the Veteran's nephropathy is part of the Veteran's diabetic
process and not, as yet, at the level of a separate rating
for a diabetic complication.  See 38 C.F.R. � 4.119,
Diagnostic Code 7913, Note 1.  There was no evidence in these
VA examinations that the Veteran's early nephropathy
satisfied the criteria for a compensable rating for renal
dysfunction pursuant to 38 C.F.R. � 4.115a, 4.115b,
Diagnostic Code 7541 (2009).  Specifically, under the
schedule criteria for renal dysfunction, it is not shown that
the Veteran suffers from criteria for the minimal 30 percent
rating.  As noted above, the Veteran withdrew his request to
have his diabetes evaluated for retinopathy and any evidence
of diabetic retinopathy found in the January 2004 VA
examination was contradicted in all succeeding VA
examinations beginning in February 2004.  Further, as regards
the Veteran's erectile dysfunction which evidence links to
his diabetes, a review of the claims file discloses that the
Veteran is receiving special monthly compensation under
38 U.S.C.A. � 1114 for loss of use of a creative organ; and
the evidence of record does not otherwise rise to the level
of schedular compensation for his erectile dysfunction
because there is no evidence of deformity of the penis.  See
38 C.F.R. � 4.115b, Diagnostic Code 7522 (2009).  Therefore,
the Board finds that nephropathy and erectile dysfunction are
noncompensable schedular complications of diabetes and that
their consideration as part of the Veteran's diabetic process
under Diagnostic Code 7913 does not warrant an initial rating
in excess of 20 percent for the Veteran's service-connected
diabetes mellitus

Based upon the evidence of record, the Board finds that the
Veteran is entitled to separate ratings for the peripheral
neuropathy of his lower extremities.  As noted above, the RO
awarded 10 percent disability ratings for each extremity for
the period from October 5, 2005 to August 5, 2009, and 20
percent for the period thereafter.  Under the provisions of
Diagnostic Code 8521 and 8621, for incomplete paralysis of
the external popliteal nerve in the lower extremities
representing neuritis, a rating not in excess of 10 percent
for mild incomplete paralysis of the nerve is warranted for
the period from the October 5, 2005 VA examination to the
August 5, 2009 VA examination.  The October 2005 VA examiner
found that peripheral neuropathy of the lower extremities was
secondary to diabetes and that the resulting neurological
condition represented neuritis.  This examiner noted,
however, that bilateral peripheral pulses were normal, the
bilateral peripheral nerve examination also was within normal
limits, and that motor functions of the lower extremities
also were normal.  Only the Veteran's sensory functions were
abnormal with findings of decreased vibratory sensation in
both feet.

Under the provisions of Diagnostic Code 8521 and Diagnostic
Code 8621, a rating not in excess of 20 percent for moderate
incomplete paralysis is warranted for the period from October
5, 2005 to the present.  The August 2009 VA peripheral nerves
examination found greater sensory deprivation in the lower
extremities than was found in the October 2005 examination.
Tests conducted by the August 2009 VA examiner found moderate
to severe chronic mixed sensory motor polyneuropathy
affecting both of the lower extremities.  As most of the
negative testing reflected sensory deficits rather than
sensory and motor function losses, the Board finds a 20
percent rating for moderate incomplete paralysis is
appropriate rather than the 30 percent rating available for
severe incomplete paralysis.  See 38 C.F.R. � 4.124a,
Diagnostic Codes 8521 and 8621 (2009).

The Veteran also sought separate ratings and an increased
initial rating based on peripheral neuropathy in his upper
extremities.  As noted above, however, the medical evidence
has never shown motor and sensory deficits of the upper
extremities, although the March 2009 VA examiner found
bilateral peripheral neuropathy of the upper and lower
extremities.  However, the August 2009 VA peripheral nerves
examination found after testing that upper extremity studies
were normal.  The August 2009 VA examiner did note, however,
that the Veteran could face the progression of his peripheral
neuropathy to his upper extremities in the future.
Therefore, under the criteria of Diagnostic Codes 8515 and
8615 for impairment or neuritis of the median nerve in the
upper extremities, a compensable rating for peripheral
neuropathy of either the left or right upper extremity is not
warranted in this appeal at this time as the medical evidence
of record does not even show mild incomplete paralysis of the
nerve, or the criteria for a 10 percent disability rating.

In addition, competent medical evidence reflects that the
Veteran does not have any additional compensable diabetic
complications.  Consequently, the assignment of a separate
disability rating for any other condition, but peripheral
neuropathy of the lower extremities, is not warranted under
38 C.F.R. � 4.119, Diagnostic Code 7913, Note (1).

The Board has considered whether the application of "staged
ratings" would be in order.  See Fenderson, 12 Vet. App. at
125-26.  However, there appears to be no identifiable period
of time since the effective date of service connection during
which the Veteran's service-connected diabetes mellitus was
shown to be in excess of the assigned 20 percent rating.

The Board has carefully considered the Veteran's personal
report of his symptoms and finds he is competent to testify
regarding what he is able to experience through his senses.
However, while the Veteran is competent to report what comes
to him through his senses, he does not have medical
expertise.  See Layno v. Brown, 6 Vet. App. 465 (1994).  As
the Veteran does not have medical expertise, the Board finds
his statements to be less persuasive than the medical
evidence noted above.

The Board acknowledges the Veteran's contentions that his
diabetes mellitus is more severely disabling.  However, the
Veteran is not a licensed medical practitioner and is not
competent to offer opinions on questions of medical causation
or diagnosis.  See Grottveit v. Brown, 5 Vet. App. 91 (1993);
see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

The Board also finds that the evidence of record does not
support submission of the file for extraschedular
consideration of the disability ratings at issue.  There is a
three-step analysis for determining whether an extraschedular
rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115
(2008).  First, there must be a comparison between the level
of severity and symptomatology of the claimant's service-
connected disability and the established criteria found in
the rating schedule to determine whether the Veteran's
disability picture is adequately contemplated by the rating
schedule.  Id.  If not, the second step is to determine
whether the claimant's exceptional disability picture
exhibits other related factors identified in the regulations
as "governing norms."  Id. at 115-16; see also 38 C.F.R.
� 3.321(b)(1) (governing norms include marked interference
with employment and frequent periods of hospitalizations).
If the factors of step two are found to exist, the third step
is to refer the case to the Under Secretary for Benefits or
the Director of the Compensation and Pension Service for a
determination whether, to accord justice, the claimant's
disability picture requires the assignment of an
extraschedular rating.  Id. at 116.

After a thorough review of the record, the Board is convinced
that the Veteran has not met the first step of Thun as the
Board believes that the rating criteria noted within this
decision reasonably describes the Veteran's disability levels
and the symptomatology of his diabetes and its complications
during the time period of this appeal; moreover, he has not
argued that exceptional factors, such as interference with
employment or hospitalizations, are involved in his case.
Therefore, no referral for extraschedular consideration is
required in this case.

When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the claimant prevailing in either
event, or whether a preponderance of the evidence is against
the claim in which case the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the
evidence is against awarding an initial disability rating in
excess of 20 percent for diabetes mellitus with nephropathy,
retinopathy and erectile dysfunction, and against granting
separate ratings for peripheral neuropathy of both upper
extremities.  In addition, the preponderance of the evidence
is against separate ratings in excess of 10 percent for
peripheral neuropathy of both lower extremities, for the
period from October 5, 2005 to August 5, 2009, and in excess
of 20 percent thereafter.  See Fenderson, supra.

ORDER

Entitlement to an initial rating in excess of 20 percent for
diabetes mellitus is denied.

Entitlement to a separate rating in excess of 10 percent for
peripheral neuropathy of the left lower extremity secondary
to diabetes mellitus, from October 5, 2005 to August 5, 2009,
and in excess of 20 percent thereafter, is denied.

Entitlement to a separate rating in excess of 10 percent for
peripheral neuropathy of the right lower extremity secondary
to diabetes mellitus, from October 5, 2005 to August 5, 2009,
and in excess of 20 percent thereafter, is denied.

Entitlement to a separate compensable rating for peripheral
neuropathy of the left upper extremity secondary to diabetes
mellitus is denied.

Entitlement to a separate compensable rating for peripheral
neuropathy of the right upper extremity secondary to diabetes
mellitus is denied.

____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs