Citation Nr: 0937974	
Decision Date: 10/06/09    Archive Date: 10/14/09

DOCKET NO.  04-41 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUES

1.  Entitlement to an increased initial rating for peripheral 
neuropathy of the right upper extremity, currently rated as 
10 percent disabling.

2.  Entitlement to an increased initial rating for peripheral 
neuropathy of the left upper extremity, currently rated as 10 
percent disabling.

3.  Entitlement to an increased initial rating for peripheral 
neuropathy of the right lower extremity, rated as 10 percent 
disabling prior to November 20, 2008, and as 20 percent 
disabling as of November 20, 2008.

4.  Entitlement to an increased initial rating for peripheral 
neuropathy of the left lower extremity, rated as 10 percent 
disabling prior to November 20, 2008, and as 20 percent 
disabling as of November 20, 2008.


REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from November 1964 to 
September 1968.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a May 2004 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Cleveland, 
Ohio.

In September 2008, the Board remanded these matters for 
additional development.  In December 2008, the originating 
agency issued a rating decision granting a 20 percent rating 
for the right lower extremity and a 20 percent rating for the 
left lower extremity, each effective from November 20, 2008.  
The claims since have been returned to the Board for further 
appellate action.  


FINDINGS OF FACT

1.  Throughout the initial rating period, the Veteran's 
peripheral neuropathy of the right upper extremity has more 
nearly approximated mild, incomplete paralysis than moderate 
incomplete paralysis.

2.  Throughout the initial rating period, the Veteran's 
peripheral neuropathy of the left upper extremity has more 
nearly approximated mild, incomplete paralysis than moderate 
incomplete paralysis.

3.  Throughout the initial rating period, the Veteran's 
peripheral neuropathy of the right lower extremity has more 
nearly approximated moderate, incomplete paralysis than 
severe incomplete paralysis.

4.  Throughout the initial rating period, the Veteran's 
peripheral neuropathy of the left lower extremity has more 
nearly approximated moderate, incomplete paralysis than 
severe incomplete paralysis.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 10 percent 
for peripheral neuropathy of the right upper extremity have 
not been met.  38 U.S.C.A. § 1155 (West 2008); 38 C.F.R. §§ 
4.7, 4.124a, Diagnostic Codes 8515, 8715 (2009).

2.  The criteria for an evaluation in excess of 10 percent 
for peripheral neuropathy of the left upper extremity have 
not been met.  38 U.S.C.A. § 1155 (West 2008); 38 C.F.R. §§ 
4.7, 4.124a, Diagnostic Codes 8515, 8715 (2009).

3.  The criteria for an evaluation of 20 percent for 
peripheral neuropathy of the right lower extremity have been 
met from the date of claim through November 20, 2008; the 
criteria for an evaluation in excess of 20 percent for 
peripheral neuropathy of the right lower extremity have not 
been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 
4.124a, Diagnostic Codes 8521, 8721 (2009).

4.  The criteria for an evaluation of 20 percent for 
peripheral neuropathy of the left lower extremity have been 
met from the date of claim through November 20, 2008; the 
criteria for an evaluation in excess of 20 percent for 
peripheral neuropathy of the right lower extremity have not 
been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 
4.124a, Diagnostic Codes 8521, 8721 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks increased initial ratings for peripheral 
neuropathies of the upper and lower extremities.  The Board 
will initially discuss certain preliminary matters and will 
then address the pertinent law and regulations and their 
application to the facts and evidence.

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (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 (2009), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the 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.  Although the regulation previously 
required VA to request that the claimant provide any evidence 
in the claimant's possession that pertains to the claim, the 
regulation has been amended to eliminate that requirement for 
claims pending before VA on or after May 30, 2008.

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) requires that notice to a claimant 
pursuant to the VCAA be provided "at the time" that, or 
"immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004). 

The timing requirement enunciated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006). 

The Veteran was provided adequate VCAA notice in a letters 
mailed in April 2004 and March 2006.  Although the Veteran 
was not provided complete notice until after the initial 
adjudication of the claims, the Board finds that there is no 
prejudice to him in proceeding with the issuance of a final 
decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  
In this regard, the Board notes that following the provision 
of the required notice and the completion of all indicated 
development of the record, the originating agency 
readjudicated the Veteran's claims in December 2008.  There 
is no indication in the record or reason to believe that any 
ultimate decision of the originating agency on the merits of 
the claims would have been different had complete VCAA notice 
been provided at an earlier time.  See Overton v. Nicholson, 
20 Vet. App. 427, 437 (2006) (A timing error may be cured by 
a new VCAA notification followed by a readjudication of the 
claim).  

The Board further notes that service treatment records and 
all available post-service medical evidence identified by the 
Veteran have been obtained.  In addition, the Veteran has 
been provided a VA examinations in response to this claim, 
and a medical opinion has been rendered in response to the 
Board's remand directives.  Neither the Veteran nor his 
representative has identified any outstanding evidence that 
could be obtained to substantiate any of the claims.  The 
Board is also unaware of any such evidence.

In sum, the Board is satisfied that any procedural errors in 
the development and consideration of the claims by the 
originating agency were insignificant and non-prejudicial to 
the Veteran.  Accordingly, the Board will address the merits 
of the claims.

General Legal Criteria

Disability evaluations are determined by the application of 
the VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4 (2009).  The percentage ratings contained 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. 
§§ 3.321(a), 4.1 (2009).

Where there is a question as to which of two evaluations 
shall 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 (2009).

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary.  The Secretary 
shall consider all information and lay and medical evidence 
of record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary.  When 
there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a 
claim on its merits, the evidence must preponderate against 
the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert, 1 Vet. App. at 54.

Analysis

The Veteran's service-connected peripheral neuropathy of the 
upper extremities is currently rated 10 percent disabling for 
each side under 38 C.F.R. § 4.124a, Diagnostic Code 8715 
(2009) (providing ratings for neuralgia of the median nerve).  
The ratings for Diagnostic Code 8715 use the schedule for 
Diagnostic Code 8515, which provides ratings for paralysis 
(complete and incomplete) of the median nerve.  Diagnostic 
Code 8515 provides that mild incomplete paralysis is rated as 
10 percent disabling, moderate incomplete paralysis is rated 
as 20 percent disabling for the minor side and 30 percent 
disabling for the major side and severe incomplete paralysis 
is rated as 40 percent disabling for the minor side and 50 
percent disabling for the major side.  Complete paralysis of 
the median nerve, hand inclined to the ulnar side, the index 
and middle fingers more extended than normally, considerable 
atrophy of the muscles of the thenar eminence, the thumb in 
the plane of the hand (ape hand); pronantion incomplete and 
defective, absence of flexion of index finger, and feeble 
flexion of the middle finger, cannot make a fist, index and 
middle fingers remain extended, cannot flex distal phalanx of 
thumb, defective opposition and abduction of the thumb, at 
right angle to palm; flexion of the wrist weakened, pain with 
trophic disturbances, is rated as 60 percent disabling for 
the minor side and 70 percent disabling for the major side.  
Additionally, Diagnostic Code 8615 provides a rating for 
neuritis of the median nerve also via Diagnostic Code 8515.

The Veteran's service-connected peripheral neuropathy of the 
lower extremities is currently rated 20 percent disabling for 
each side as of November 20, 2008, (i.e., 20 percent for the 
right and left lower extremity) under 38 C.F.R. § 4.124a, 
Diagnostic Code 8721 (2009) (providing ratings for neuralgia 
of the external popliteal nerve (common peroneal)).  Prior to 
that date, he is rated 10 percent for each lower extremity 
under the same code.  The ratings for Diagnostic Code 8721 
use the schedule for Diagnostic Code 8521, which provides 
ratings for paralysis (complete and incomplete) of the 
external popliteal nerve.  Diagnostic Code 8521 provides that 
mild incomplete paralysis is rated as 10 percent disabling, 
moderate incomplete paralysis is rated as 20 percent 
disabling and severe incomplete paralysis is rated as 30 
percent disabling.  Complete paralysis of the external 
popliteal nerve, foot drop and slight droop of first 
phalanges of all toes, cannot dorsiflex the foot, extension 
(dorsal flexion) of proximal phalanges of toes lost; 
abduction of foot lost, adduction weakened; anesthesia covers 
entire dorsum of foot and toes, is rated as 40 percent 
disabling.  Additionally, Diagnostic Code 8621 provides a 
rating for neuritis of the external popliteal nerve also via 
Diagnostic Code 8521.

The term "incomplete paralysis" with this and other 
peripheral nerve injuries indicates a degree of lost or 
impaired function substantially less than the type pictured 
for complete paralysis given with each nerve, whether due to 
varied level of the nerve lesion or to partial regeneration.  
When the involvement is wholly sensory, the rating should be 
for the mild, or at most, the moderate degree.  The ratings 
for the peripheral nerves are for unilateral involvement; 
when there is bilateral involvement, the VA adjudicator is to 
combine the ratings for the peripheral nerves, with 
application of the bilateral factor.  38 C.F.R. § 4.124a.  
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).

After reviewing the evidence of record, the Board finds that, 
overall, such evidence does not support findings that the 
Veteran's service-connected peripheral neuropathies of the 
right and left upper extremities warrant evaluations in 
excess of 10 percent at any time relevant to the claims.  

Additionally, after reviewing the evidence of record, the 
Board finds that, overall, such evidence supports a finding 
of a 20 percent rating for each of the service-connected 
peripheral neuropathies of the right and left lower 
extremities prior to November 20, 2008, specifically from the 
date of claim, but it does not support findings that the 
Veteran's service-connected peripheral neuropathies of the 
right and left lower extremities warrant evaluations in 
excess of 20 percent at any time relevant to the claims.  

In assigning the initial ratings for peripheral neuropathies 
of the upper and lower extremities secondary to diabetes 
mellitus in a May 2004 rating decision, the RO considered a 
statement and records from the Veteran's treating physician, 
K.K., M.D., as well as a report of VA examination dated in 
April 2004.  K.K, M.D. stated in documents received at VA in 
January 2004 that the Veteran had been treated by her for 
diabetes mellitus, type II, since July 2003.  She indicated 
that the Veteran was positive for neuropathies in the toes 
and fingers.  A treatment record dated in July 2003 reflects 
complaints of bilateral numbness of the toes and fingers, 
decreased energy and burning hands.  

The April 2004 VA examination reflects that the Veteran was 
diagnosed with diabetes mellitus, type II, in 2003 and that 
current daily medications included Avandamet, Tricor and 
Folabee.  He complained of neuropathy and burning sensations 
in the hands and feet.  He was noted to be right hand 
dominant, and currently worked as a machine operator.  
Examination reveled decreased pinprick and vibratory 
sensation of bilateral fingers and palms of his hands, glove-
like in nature.  There was also decreased pinprick and 
vibratory sensation in both lower extremities, bilateral 
toes, plantar, ankle and mid-calf area.  He had full range of 
motion of all extremities and did not complain of 
fatigability on repeated movements.  He reported tingling and 
burning sensation in the upper and lower extremities.  He was 
cooperative.  He reported he saw his diabetic care provider 
once every three months.  The examining physician assistant's 
diagnosis was diabetes mellitus, type II, with peripheral 
neuropathy bilateral hands the toes, plantar, ankle and mid 
calf areas of the lower extremities.  

The Veteran was afforded an additional VA examination in 
November 2008.  The examining physician reviewed the claims 
folder and noted the Veteran's complaint of numbness in the 
toes for three years.  The Veteran reported that he was now 
taking Avandia and metformin (now with Januvia and Actoplus 
metformin.)  He noted that tingling and dysesthesias in the 
toes of both feet started a year after his diagnosis of 
diabetes four years earlier.  He also reported sharp pains in 
the second toe of the right foot lasting for a minute or two.  
The Veteran noted tingling in the fingers, not as much 
currently as he had in the beginning.  He noted decreased 
gripping ability and knuckle pain about a year ago.  

On physical examination, the Veteran walked on heels or toes 
with ankle pain but no low back pain.  There was positive 
Tinel's test at the left cubital and carpal tunnels.  
Neurological examination revealed intact mental and cranial 
nerves II through XII (fundi not examined), no tremor or 
dysmetria, and negative Romberg's sign.  He could balance on 
either foot but could not tandem walk.  Deep tendon reflexes 
were 1+ except absent ankle jerks, with down going toes, 
motor was 5/5 in all distal muscle groups of the upper and 
lower extremities.  Sensory was intact distally in the upper 
and lower extremities to 2 point discrimination, 1 gram 
monofilament, vibration, position, (except 2PD decreased 
medially and laterally in right foot and laterally in left 
foot, 1 gram monofilament absent medially and laterally in 
left foot and medially in the right foot, vibration absent in 
right foot at toes and medial malleolus but intact at lateral 
malleolus).  

The examining physician opined that the Veteran's tingling 
dysesthesias distally in all extremities were associated with 
his diabetes.  He noted that the neurological examination 
showed absent Achilles tendon reflex bilaterally, mild 
truncal ataxia, and decreased sensation distally in the lower 
and upper extremities.  The doctor emphasized that the 
Veteran was a fall risk and would soon find it necessary to 
use a cane or a walker.  Use-related pain in the fingers 
bilaterally was attributed by the examiner to osteoarthritis 
in the fingers bilaterally.  Strength in the hand muscles was 
noted to be normal.  

As to the upper extremities, the foregoing evidence 
consistently indicates that the neither the peripheral 
neuropathy of the right or left median nerve is more than 10 
percent disabling.  Both examination results in 2004 and 2008 
demonstrate that the disability is no more than mild in 
either extremity.  While Tinel's sign was positive, and the 
Veteran complained of tingling in the hands, motor testing 
was 5/5 in the upper extremity distal muscle groups and 
sensory was intact in 2008.  In 2004, the involvement was 
wholly sensory and involved pinprick and vibratory sensation.  
This was not described in degrees but has not been shown to 
be more than mild.  While the Veteran has reported that he 
continued to work but had to take less hours due to his pain 
and stiffness in the hands, the examining VA physician 
explained in 2008 that the Veteran's complaints of pain and 
stiffness in the hands were due to arthritis.  In sum, there 
is no medical showing that the Veteran's left or right upper 
extremity peripheral neuropathy has been described as more 
than mild or indicating the presence of functional impairment 
that more nearly approximates moderate incomplete paralysis 
than mild incomplete paralysis.

Turning to the lower extremities, the foregoing evidence 
consistently indicates that the Veteran's peripheral 
neuropathy of the right and left lower extremities is 
moderate at all times relevant to the claims.  Therefore, an 
increased rating to 20 percent is warranted for the period 
from the date of claim to November 19, 2008, as to each lower 
extremity.  The Board notes that, during that time period, 
the record does not show that the manifestations of either 
the right or left lower extremity were less severe than they 
were as of November 20, 2008.  

As to the issue of a rating in excess of 20 percent for 
either the right or left lower extremity at any time, 
however, various testing and examination results demonstrate 
that the disabilities have not been manifested by incomplete 
paralysis that more nearly approximates severe than moderate.  
The November 2008 examining physician's description of the 
manifestations, specifically absent Achilles tendon reflex, 
truncal ataxia and decreased sensation, coupled with the 
assessment that the Veteran was now a fall risk and would 
progress to a walker, leads the Board to this conclusion.  
These produce moderate but not severe effects at present.  
Neither severe incomplete paralysis or complete paralysis of 
the external popliteal (common peroneal) nerve is shown.  The 
Veteran retains the ability to walk and work.  He does not 
demonstrate foot drop or droop of first phalanges of all 
toes, he retains the ability to dorsiflex the feet, has not 
lost extension (dorsal flexion) of proximal phalanges of toes 
lost or abduction of either foot with adduction weakened, and 
anesthesia does not cover the entire dorsum of foot and toes 
on either side.  

The Board has considered the Veteran's various statements 
regarding the severity of the disabilities and their impact 
on his ability to work and perform certain activities.  It is 
noted that he reported in written argument that he had to 
work less hours due to his pain in the hands and feet and 
related joints.  The Board believes that the Veteran's 
description of his symptoms is for the most part consistent 
with the assigned ratings inasmuch as they relate to the 
service-connected disabilities.  The Board notes nonetheless 
that the VA examiner pointed out that use related pain in the 
fingers was due to arthritis.  To the extent that he is 
alleging greater functional impairment due to service-
connected disability in either an upper or lower extremity 
due to service-connected peripheral neuropathy, the Board has 
determined that the objective and clinical evidence is more 
probative than the subjective statements of the Veteran.  As 
explained above, the objective evidence shows that he does 
not have sufficient functional impairment to warrant a rating 
higher than 10 percent for either upper extremity or 20 
percent for either lower extremity.

Consideration has been given to assigning additional staged 
ratings; however, at no time during the period in question 
have the disabilities warranted more than the assigned 
ratings, to include the increases granted herein.  See Hart 
v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 
Vet. App. 119 (1999).

The Board has also considered whether this case should be 
referred to the Director of the VA Compensation and Pension 
Service for extra-schedular consideration under 38 C.F.R. § 
3.321(b)(1).  The Court has held that the threshold factor 
for extra-schedular consideration is a finding on part of the 
RO or the Board that the evidence presents such an 
exceptional disability picture that the available schedular 
evaluations for the service-connected disability at issue are 
inadequate.  Therefore, initially, there must be a comparison 
between the level of severity and the symptomatology of the 
claimant's disability with the established criteria provided 
in the rating schedule for the disability.  If the criteria 
reasonably describe the claimant's disability level and 
symptomatology, then the disability picture is contemplated 
by the rating schedule, the assigned evaluation is therefore 
adequate, and no referral for extra-schedular consideration 
is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

In the case at hand, the record reflects that the Veteran has 
not required frequent hospitalizations for the disabilities 
and that the manifestations of the disabilities are not in 
excess of those contemplated by the schedular criteria.  In 
sum, there is no indication that the average industrial 
impairment from the disabilities would be in excess of that 
contemplated by the assigned ratings.  Accordingly, the Board 
has determined that referral of this case for extra-schedular 
consideration is not in order.


							(CONTINUED ON NEXT PAGE)


ORDER

Entitlement to an initial rating in excess of 10 percent for 
peripheral neuropathy of the right upper extremity is denied.

Entitlement to an initial rating in excess of 10 percent for 
peripheral neuropathy of the left upper extremity is denied.

The Board having determined that the peripheral neuropathy of 
the Veteran's right lower extremity warrants a 20 percent 
rating, but not higher, throughout the initial-rating period, 
the benefit sought on appeal is granted to this extent and 
subject to the criteria governing the award of monetary 
benefits.  

The Board having determined that the peripheral neuropathy of 
the Veteran's left lower extremity warrants a 20 percent 
rating, but not higher, throughout the initial-rating period, 
the benefit sought on appeal is granted to this extent and 
subject to the criteria governing the award of monetary 
benefits.  



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs