Citation Nr: 0616103 Decision Date: 06/02/06 Archive Date: 06/13/06 DOCKET NO. 02-17 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. 4. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 5. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran served on active duty from June 1966 to March 1970. These matters come to the Board of Veterans' Appeals (Board) from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO granted service connection for diabetes mellitus and peripheral neuropathy, and assigned the ratings shown above. The veteran perfected an appeal of the assigned ratings. FINDINGS OF FACT 1. The veteran's diabetes mellitus requires insulin, oral hypoglycemic agents, and a restricted diet, but not regulation of activities. 2. Peripheral neuropathy of the right upper extremity is manifested by lack of sensation in the hand, without loss of motor function, representing no more than mild incomplete paralysis of the ulnar nerve. 3. Peripheral neuropathy of the left upper extremity is manifested by lack of sensation in the hand, without loss of motor function, representing no more than mild incomplete paralysis of the ulnar nerve. 4. Peripheral neuropathy of the right lower extremity is manifested by pain and lack of sensation in the distal portion of the lower leg, without loss of motor function, representing no more than mild incomplete paralysis of the sciatic nerve. 5. Peripheral neuropathy of the left lower extremity is manifested by pain and lack of sensation in the distal portion of the lower leg, without loss of motor function, representing no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2005). 2. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.120, 4.124a, Diagnostic Code 8516 (2005). 3. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.120, 4.124a, Diagnostic Code 8516 (2005). 4. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.120, 4.124a, Diagnostic Code 8520 (2005). 5. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.120, 4.124a, Diagnostic Code 8520 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Evaluation of Diabetes Mellitus and Peripheral Neuropathy The veteran has appealed the disability ratings initially assigned with the grants of service connection in September 2001. Because he has appealed the initial ratings, the Board must consider the applicability of staged ratings covering the time period in which his claim and appeal have been pending. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Diabetes Mellitus Diagnostic Code 7913 for diabetes mellitus provides a 40 percent rating if the disorder requires treatment with insulin, a restricted diet, and regulation of activities. A 20 percent rating applies if it requires treatment with insulin, a restricted diet; or an oral hypoglycemic agent and a restricted diet. 38 C.F.R. § 4.119. The medical evidence shows that the veteran's diabetes mellitus requires insulin, hypoglycemic agents, and diet restrictions for control, based on which the RO assigned a 20 percent rating. Entitlement to a 40 percent rating is dependent on whether the diabetes mellitus requires regulation of activities. None of the medical evidence indicates that the diabetes requires regulation of activities. When examined in December 2000 the veteran denied any restrictions in his activities due to diabetes. VA treatment records beginning in January 2003 indicate that he was encouraged to increase his exercise level in order to lose weight. In August 2003 his medical care provider instructed him to walk 30 minutes every day. When undergoing a cardiac examination in September 2004 the examiner found that the veteran was unable to exercise due to chronic back pain, not because his activities were regulated due to diabetes. During the diabetes mellitus examination the veteran reported having difficulty standing and walking due to pain in the lower extremities, which he attributed to peripheral neuropathy. The examiner found that the veteran was not required to avoid strenuous activity due to the diabetes, although he should avoid activities that worsened the symptoms of peripheral neuropathy. Although the examiner in September 2004 indicated that the veteran should avoid activities that increased the symptoms of peripheral neuropathy, none of the evidence indicates that regulation of activities is required to control the diabetes. The veteran's ability to ambulate may be limited due to the peripheral neuropathy and chronic back pain, but the evidence does not indicate that his activities have been regulated as a means of controlling the diabetes. The VA treatment records show that in receiving treatment from his primary care provider and an endocrinologist he was encouraged to increase his exercise level, not to regulate his activities. The Board finds, therefore, that the criteria for a higher rating for diabetes mellitus have not been met since the claim for service connection was initiated. For that reason the preponderance of the evidence is against the appeal to establish entitlement to a higher rating for diabetes mellitus. A higher rating could apply if the case presented an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. 38 C.F.R. § 3.321(b)(1). The evidence does not show that the diabetes mellitus has resulted in any hospitalizations during the time frame relevant to the veteran's November 2000 claim. In addition, the evidence does not show that the diabetes mellitus and its secondary disabilities have caused marked interference with employment. The veteran reported in September 2004 that he had changed jobs from retail sales to become a manager because he was no longer able to stand for several hours a day. In addition to diabetes mellitus and peripheral neuropathy, service connection has been established for coronary heart disease, rated as 10 percent disabling; and glaucoma and hypertension, rated as non-compensable, as secondary to diabetes mellitus. The combined rating for the service-connected disabilities arising from the diabetes mellitus is 60 percent. Furthermore, he has been granted special monthly compensation due to the loss of a creative organ (impotence) as secondary to the diabetes. An extra-schedular rating is warranted only if the evidence shows that there are circumstances that place this veteran in a position different from other veterans with a 60 percent rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The 60 percent rating that has been assigned contemplates significant impairment of the veteran's earning capacity. The evidence does not show an exceptional or unusual disability picture to render the application of the regular schedular criteria impractical. The Board finds, therefore, that remand of the case for referral for consideration of an extra-schedular rating is not appropriate. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Peripheral Neuropathy Disability involving a neurological disorder is ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. Peripheral neuropathy in the upper extremities has been evaluated as incomplete paralysis of the ulnar nerve under Diagnostic Code 8516. That diagnostic code provides a 60 percent disability rating for complete paralysis in the major extremity, and a 50 percent rating for the minor extremity. If paralysis is incomplete, a 10 percent disability rating applies for mild residuals in either extremity; a 30 percent rating for moderate residuals in the major extremity (20 percent if minor); and a 40 percent rating for severe residuals in the major extremity (30 percent if minor). 38 C.F.R. § 4.124a. The peripheral neuropathy in the lower extremities has been rated under Diagnostic Code 8520 for sciatic neuropathy. That diagnostic code provides a 60 percent rating for severe incomplete paralysis, with marked muscular atrophy. A 40 percent rating applies if the incomplete paralysis is moderately severe, a 20 percent rating if moderate, and a 10 percent rating if mild. 38 C.F.R. § 4.124a. The VA examination in December 2000 resulted in a finding that the veteran had peripheral neuropathy in all extremities that was secondary to the diabetes mellitus. Examination revealed decreased pinprick sensation distally from above the ankles and from the wrists. Vibratory sensation was reduced in the feet, but normal in the hands. Ankle jerks were absent, but the remaining deep tendon reflexes were normal. VA treatment records document the veteran's ongoing complaints of numbness, primarily in the feet. Beginning in February 2002 he was given medication for neuropathic pain in the feet. Although the records document complaints of swelling in the feet, the examiner in September 2004 determined that the swelling was due to his heart condition, not the peripheral neuropathy. Examination in May 2003 revealed decreased sensation to light touch and vibration in the feet to just above the ankles, and decreased sensation in the hands. The examiner found normal muscle mass, tone, and strength in the extremities. Deep tendon reflexes were absent in the ankles, 1+ in the knees, and 1+ in the upper extremities. The examiner determined that the peripheral neuropathy was primarily sensory and described the neurological deficit as mild. Similar findings were documented when the veteran was examined in September 2004, and the examiner again characterized the peripheral neuropathy as mild. The evidence does not indicate that the peripheral neuropathy has resulted in loss of motor function in the extremities. In accordance with 38 C.F.R. § 4.124a, if the involvement is wholly sensory, the rating should be for mild or, at most, moderate incomplete paralysis. Although the veteran contends that he has difficulty ambulating due to pain in the lower extremities, which he attributes to peripheral neuropathy, the medical evidence indicates that he also has degenerative disc disease in the lumbosacral spine with radiation of pain into the lower extremities. The examiners noted his complaints and determined, nonetheless, that the peripheral neuropathy was no more than mild. The Board finds, therefore, that the peripheral neuropathy in both upper and both lower extremities is no more than mild, and that the criteria for higher ratings have not been met since the claim for service connection was initiated. For that reason the Board has determined that the preponderance of the evidence is against the appeal to establish entitlement to disability ratings in excess of 10 percent for peripheral neuropathy of the right and left upper and lower extremities. Development of the Claim Regarding VA's duty to inform the veteran of the evidence needed to substantiate his claim, the RO notified him of the information and evidence needed to establish entitlement to higher ratings in October 2002, April 2004, and August 2004. In those notices the RO also informed him of the information and evidence that he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. The Board finds, therefore, that VA has fulfilled its duty to inform the veteran of the evidence he was responsible for submitting, and what evidence VA would obtain in order to substantiate his claim. Although the notices were sent following the decision on appeal, the delay in issuing the notice was not prejudicial to the veteran. The delay did not affect the essential fairness of the adjudication, because the RO re-adjudicated the claim, based on all the evidence of record, after the notice was sent. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. April 5, 2006). Because entitlement to higher ratings has been denied, any question regarding the effective date is moot and any deficiency in the content of the notice is not prejudicial to the veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist the veteran in obtaining evidence in support of his claim, the RO has obtained the VA treatment records he identified and provided him VA medical examinations in December 2000, May 2003, and September 2004. All development requests in the December 2003 Board remand were fulfilled. The veteran has not indicated the existence of any other evidence that is relevant to his claim; as such, all relevant data has been obtained for determining the merits of his claim and no reasonable possibility exists that any further assistance would aid him in substantiating his claim. ORDER The appeal to establish entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. The appeal to establish entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. The appeal to establish entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied. The appeal to establish entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. The appeal to establish entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs