Diabetic neuropathy denial used incorrect ratings
CCK Law: Our Vital Role in Veterans Law
Summary
The Veteran served in the United States Navy from 1983 to 1984. He was medically discharged after developing diabetes during service. He filed his initial claim for benefits in 1984 and was granted service connection for diabetes that same year. In 1985, the Veteran reported symptoms consistent with a diabetic nerve condition. He was diagnosed with diabetic neuropathy and was granted benefits for his right arm at 10%. In April 2004, the Veteran filed a claim for an increased rating for his diabetic neuropathy. His rating was eventually increased to 30% effective November 2013. He filed another appeal to the Board of Veterans’ Appeals, requesting ratings above 10 and 30%.
Board denied increased rating for diabetic neuropathy
In March 2015, the Board denied an increased rating for the Veteran’s diabetic neuropathy above 10% prior to November 2013. It also denied a rating above 30% from November 2013. He appealed his case to the Court of Appeals for Veterans Claims. The case was remanded back to the Board for further development in December 2015. In March 2016, the Board issued a new decision, denying increased ratings in excess of 10%, 20%, & 50%. The Board found that the Veteran was not entitled to a higher rating as the Veteran’s nerve condition was not severe enough to warrant increased compensation.
CCK appeals to the CAVC
CCK successfully appealed this Board decision that denied the Veteran increased ratings for his service-connected nerve condition. For the first period of time on appeal, the Board found the Veteran’s neuropathy resulted in mild incomplete paralysis of the radial, median, ulnar, and musculocutaneous nerves, and therefore denied a rating in excess of 10%. For the second period of time, the Board found the Veteran’s neuropathy resulted in moderate incomplete paralysis of the same nerves, and denied a rating in excess of 20%. The Board determined the Veteran should be rated based on the severity of the paralysis of the nerve condition for all three periods of time on appeal.
CCK wins
CCK argued, and the Court agreed, that the Board erred in assigning 10 and 20% ratings, as the regulation states that the Veteran is entitled to a 20% disability rating for a mild incomplete paralysis and a 30% disability rating for moderate incomplete paralysis. The Court reversed the Board’s decision for these two periods of time, and requested that the Board issue the correct ratings. Additionally, the Court found that the Board erred when it failed to consider whether the Veteran would receive a higher rating if he was rated under a different set of criteria. The Court set aside the Board’s decision and remanded the case. Accordingly, the Board will have to consider if the Veteran’s conditions should be rated differently under VA regulations.
