Citation Nr: 0600786 Decision Date: 01/10/06 Archive Date: 01/19/06 DOCKET NO. 99-03 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity, prior to November 2, 1998. 2. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity, prior to November 2, 1998. 3. Entitlement to an initial disability evaluation in excess of 40 percent for peripheral neuropathy of the right lower extremity, since November 2, 1998. 4. Entitlement to an initial disability evaluation in excess of 40 percent for peripheral neuropathy of the left lower extremity, since November 2, 1998. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from September 1967 to February 1969. The instant appeal arose from an October 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which granted a claim for service connection for peripheral neuropathy secondary to the veteran's service-connected diabetes mellitus and assigned a 10 percent disability evaluation for each lower extremity, effective October 30, 1995. In a June 2000 rating decision the RO increased the disability evaluation for each lower extremity to 40 percent, effective November 2, 1998. This case was remanded by the Board of Veterans' Appeals (Board) in November 2003 for further development. The appellant's representative, in June 2000 correspondence with the RO, requested consideration of entitlement to special monthly compensation for loss of use of the lower extremities. Since this issue has not been developed by the RO, it is referred to the RO for appropriate action. The issue is not inextricably intertwined with the issue on appeal and therefore would have no effect on whether higher initial evaluations for peripheral neuropathy are warranted. Kellar v. Brown, 6 Vet. App. 157 (1994). Further, the Board notes that in an August 2004 letter, the veteran indicated her belief that the Board would address an issue of entitlement to a total disability evaluation based upon individual unemployability (TDIU) in this decision. However, the TDIU issue was first raised by the veteran in her August 2004 correspondence. The RO is in the process of developing that claim and an appeal has not been initiated with regard to that claim. Therefore, the Board does not have jurisdiction over that issue and will not address the TDIU claim in this decision. FINDINGS OF FACT 1. The veteran's service-connected peripheral neuropathy is manifested below the right knee by numbness, tingling, decreased sensation, weakness, and difficulty walking without the use of a cane, crutches or a wheelchair. 2. The veteran's service-connected peripheral neuropathy is manifested below the left knee by numbness, tingling, decreased sensation, weakness, and difficulty walking without the use of a cane, crutches or a wheelchair. CONCLUSIONS OF LAW 1. A rating in excess of 40 percent for the veteran's service-connected peripheral neuropathy of the left lower extremity is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.20, 4.68, 4.124a, Diagnostic Code 8520 (2005). 2. A rating in excess of 40 percent for the veteran's service-connected peripheral neuropathy of the right lower extremity is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.20, 4.68, 4.124a, Diagnostic Code 8520 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's representative argues that a 60 percent disability rating is warranted for each lower extremity for her service-connected peripheral neuropathy. Having carefully reviewed all the evidence of record in light of the applicable law, the Board has determined that a 40 percent disability evaluation, but no higher, is warranted throughout the appeal period. The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where there is a question as to which of two evaluations should 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. 38 C.F.R. § 4.7 (2005). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran has appealed from the initial evaluation assigned for her service-connected peripheral neuropathy of the lower extremities. Because the veteran is appealing the initial assignments of her disability ratings, the severity of the disabilities are to be considered during the entire period from the initial assignments of the disability ratings to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). In arriving at all the decisions in this case, the Board has considered the requirements of Fenderson and has determined that the evidence of record shows that the manifestations of her service-connected peripheral neuropathy have been generally consistent during the entire appeal period. Prior to November 2, 1998, the veteran's peripheral neuropathy of each leg was rated as 10 percent disabling. Since November 2, 1998, the veteran's peripheral neuropathy of each leg has been rated as 40 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520 as analogous to paralysis of the sciatic nerve. Under that Diagnostic Code, 10, 20, and 40 percent ratings are warranted for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy, and an 80 percent rating is warranted where there is complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a (2005). First, the Board will address whether a higher initial evaluation, above 10 percent, is warranted for either leg prior to November 2, 1998. The Board concludes that the medical evidence in this case is at least in approximate balance as to whether the veteran's peripheral neuropathy problems were the equivalent of moderately severe incomplete paralysis of the sciatic nerve prior to November 2, 1998. First, the evidence includes records of VA hospitalization for heart disease in January 1996, which noted that the veteran had been wheelchair dependent secondary to lower extremity peripheral neuropathy for one year. Second, a February 1996 VA outpatient record noted that the veteran had an ataxic gait and used Canadian crutches. Third, an April 1998 VA treatment record noted that the veteran reported that her bilateral foot pain was making it more difficult for her to walk. Finally, VA examinations in August 1998 indicated the appellant had difficulty ambulating due to diabetic neuropathy and used crutches or a wheelchair. Examination revealed decreased vibratory sensation and decreased sensation to pin prick in both lower extremities. VA neurologic examination in October 1998 noted numbness and tingling in both lower extremities, some decreased vibratory sensation, and normal patellar and Achilles reflexes. The diagnoses included peripheral neuropathy of the lower extremities secondary to diabetes. Thus, as the medical evidence prior to November 2, 1998 revealed that the veteran had difficulty walking without a wheelchair or crutches due to peripheral neuropathy as well as numbness, tingling, and decreased sensation, the Board finds that this evidence more nearly approximates moderately severe incomplete paralysis of the sciatic nerve under Diagnostic Code 8520. Accordingly, the Board finds that a 40 percent rating is warranted for peripheral neuropathy of each leg prior to November 2, 1998. The question in this case therefore becomes whether a rating in excess of 40 percent is warranted at any time during the appeal period for peripheral neuropathy of either lower extremity. However, for reasons explained below, a rating in excess of 40 percent is not warranted at any time during the appeal period because it would violate the amputation rule. The amputation rule limits the combined rating for disabilities of an extremity to the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2005). In this case, the June 2004 examination report is very clear that the peripheral neuropathy of the lower extremities is below the knee only. Thus, the amputation rule precludes assignment of an evaluation in excess of 40 percent because amputation below the knee is rated as 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5165. While the Board is cognizant that both the May 2000 and June 2004 VA examination reports diagnosed severe peripheral neuropathy of the lower extremities, assignment of a higher rating in this case under Diagnostic Code 8520 or any other Diagnostic Code would violate the amputation rule. Accordingly, an initial evaluation in excess of 40 percent for any time during the appeal period is not warranted. The Board lastly has considered whether the case should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2005). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability may be approved, provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. While the veteran is currently in receipt of the maximum schedular evaluation available for the peripheral neuropathy of each lower extremity pursuant to the amputation rule of 38 C.F.R. § 4.68, consideration of whether the veteran is entitled to an extraschedular rating for the disability at issue is still appropriate. See Smallwood v. Brown, 10 Vet. App. 93, 97-98 (1997). The Board may determine in the first instance that referral to the appropriate VBA officials for consideration of an extraschedular rating is not warranted. See VAOPGCPREC 6-96. The veteran's service-connected peripheral neuropathy does not result in marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. The evidence of record indicates that the veteran has worked full-time as a librarian throughout the appeal period. It was most recently noted in the record in a January 2005 VA treatment record that the veteran continues to work. Moreover, the medical evidence does not reveal frequent periods of hospitalization for the primary purpose of treating the veteran's peripheral neuropathy. Accordingly, the Board finds that referral for consideration of an extraschedular rating is not warranted. The evidence establishes that the veteran has been granted the maximum benefit available, subject to the amputation rule. The United States Court of Appeals for Veterans Claims (CAVC or Court) has held that where, as here, the question in a case is a purely legal one, the enactment of the VCAA does not affect matters on appeal. Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). In this regard, the record demonstrates that remand for further action in accordance with the VCAA would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). ORDER A higher initial rating, of 40 percent, is granted, for peripheral neuropathy of the left lower extremity, prior to November 2, 1998, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity is denied. A higher initial rating, of 40 percent, is granted, for peripheral neuropathy of the right lower extremity, prior to November 2, 1998, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs