Citation Nr: 1209539 Decision Date: 03/14/12 Archive Date: 03/28/12 DOCKET NO. 09-06 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for tarsal tunnel syndrome, right foot. 2. Entitlement to an initial disability rating in excess of 10 percent for tarsal tunnel syndrome, left foot. 3. Entitlement to an initial compensable disability rating for erectile dysfunction secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Throughout the period of appeal, the Veteran's tarsal tunnel syndrome, right foot, is manifest by no more than objective observation of moderate, incomplete paralysis. 2. Throughout the period of appeal, the Veteran's tarsal tunnel syndrome, left foot, is manifest by no more than objective observation of moderate, incomplete paralysis. 3. The Veteran's service connected erectile dysfunction is manifest by a loss of erectile power; his penile deformity is due to a separate, non-service connected disorder, Peyronie's disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for tarsal tunnel syndrome, right foot, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8525 (2011). 2. The criteria for a disability rating in excess of 10 percent for tarsal tunnel syndrome, left foot, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8525 (2011). 3. The criteria for a compensable disability rating for erectile dysfunction have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.115b, Diagnostic Code 7522 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), 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. 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 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's claims are deemed to have arisen from an appeal of the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file. VA Medical Center records have been obtained. The Veteran also was afforded VA examinations in order to ascertain the current severity of the service-connected disabilities. The Veteran has not identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural defects in the RO's development and consideration of the claims were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Tarsal Tunnel Syndrome of the Right and Left Feet As will be discussed further below, competent and credible medical evidence shows that the Veteran's tarsal tunnel syndrome is manifest through symptoms attributable to the posterior tibial nerve (see April 2009 VA examination report). Thus, the Veteran's tarsal tunnel syndrome of the right and left feet are to be rated under Diagnostic Code 8525, as DC 8525 applies to paralysis of the posterior tibial nerve. 38 C.F.R. § 4.124a, DC 8525. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Under Diagnostic Code 8525, a 10 percent evaluation is assigned for mild or moderate incomplete paralysis of the posterior tibial nerve. A 20 percent evaluation is assigned for severe incomplete paralysis. The highest schedular evaluation, 30 percent, is assigned for complete paralysis with paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgia nature, an inability to flex the toes, weakened adduction, and impaired plantar flexion. 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. 38 C.F.R. § 4.124(a). On VA examination for diabetes mellitus in April 2007, the Veteran reported experiencing a burning and aching sensation in his lower extremities. The examiner noted that monofilament testing yielded normal results. In August 2007, the Veteran remarked that his feet tingled and burned. An August 2007 letter from D.W.O., M.D., reflects that the Veteran had a stocking-glove peripheral neuropathy that was treated with neuropathic medication. In October 2007, the Veteran wrote that he experienced burning, tingling, and constant pain in his feet. An October 2007 letter from M.J.S., D.P.M., reflects that the Veteran experienced diabetic neuropathy which consisted of painful burning and tingling sensations. On VA peripheral nerve examination in December 2007, the Veteran reported experiencing chronic bilateral foot pain. He said that he was treated with medication that did not alleviate his symptoms. He reported that his feet constantly felt hot, and he experienced a pins and needles sensation daily. He said that the burning ranged from a 1 to 8 in intensity on a 0 (low) to 10 (high) pain scale. He said he experienced improvement generally if he sat down. The examiner reported that sensation of both feet and shins to sharp touch was normal with the exception of possible decreased sensation at the tip of each toe. Sensation to soft touch, vibration, and temperature was intact bilaterally. The examiner found no sign of muscle wasting or atrophy. The examiner concluded that no significant peripheral neuropathy was demonstrated on clinical examination. The examiner further opined that there was no significant functional impairment, restrictions, or limitations as a result of the Veteran's bilateral foot symptoms. In June 2008, the Veteran remarked that he experienced constant pain in his lower extremities and at times he could not sleep. A VA EMG/NCV test report from January 2008 reflects that there was electrodiagnostic evidence of bilateral tibial nerve compression neuropathy across the tarsal tunnel to at least a moderate degree. The report indicates that diabetic neuropathy was unlikely. A VA examiner reviewed the claims file in December 2008 to offer an opinion regarding the Veteran's lower extremity symptoms. The examiner opined that based on the January 2008 EMG/NCV testing, the Veteran had a diagnosis of moderate bilateral tarsal tunnel syndrome. He added that while private doctors had given a diagnosis of diabetic peripheral neuropathy, that diagnosis was determined in the absence of EMG/NCS testing. The examiner explained that tarsal tunnel syndrome and diabetic peripheral neuropathy of the feet can have similar clinical histories and physical examination findings. A February 2009 letter from D.W.O., M.D., reflects that the Veteran had chronic foot pain that was not getting better. On VA examination in April 2009, the Veteran reported experiencing constant numbness and tingling in his feet. The examiner observed that sensation was diminished to monofilament bilaterally in the feet. After reviewing the January 2008 EMG report, the examiner opined that the Veteran had tarsal tunnel syndrome as represented by posterior tibial neuralgia. Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that the criteria for any higher rating for tarsal tunnel syndrome of the right and left feet have not been met. The medical evidence reflects that the Veteran's service connected tarsal tunnel syndrome of the right and left feet has caused disability comparable to no more than moderate incomplete paralysis of the posterior tibial nerve, manifested by a burning sensation and sensory loss, but with no loss of muscle mass, strength, or other function attributed to this service-connected disability. The January 2008 EMG interpreter described the degree of nerve compression neuropathy as moderate, and the December 2008 VA opinion described the Veteran's bilateral tarsal tunnel syndrome as moderate. The Board finds these reports to be persuasive evidence that the symptomatology due to the Veteran's bilateral tarsal tunnel syndrome is no more than moderate, as these reports were generated by competent, impartial medical professionals in the process of creating objective medical reports. Here, there is no indication that the Veteran has had any medical training. He has not claimed to have a degree in medicine. He has not claimed to have taken and/or completed any courses in nursing. He has not claimed to have any experience in the medical field. As such, his statements are considered lay evidence. He is competent to testify as to symptoms he is able to observe, and thus, his statements regarding the pain that he experiences are considered competent evidence. However, in this particular case, the Diagnostic Codes used to evaluate the Veteran's disorders concern a complex medical situation. They concern differentiating between wholly sensory symptoms and actual nerve paralysis. Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, in this particular situation, to whatever extent the Veteran may assert that his symptoms are not wholly sensory and/or involve actual nerve paralysis, the Veteran's statements are not considered to be competent and are outweighed by the other evidence of record. As the evidence shows that the Veteran's bilateral tarsal tunnel syndrome of the feet is manifest by no more than moderate symptoms, an increased disability rating is not warranted for either foot. See 38 C.F.R. § 4.124(a), Diagnostic Code 8525. Erectile Dysfunction In regard to the claim for a compensable rating for erectile dysfunction, the Board notes that erectile dysfunction is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As such, the Veteran's erectile dysfunction can be rated pursuant to Diagnostic Code 7522, which provides a 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. An October 1999 letter from J.N.G., M.D., reflects that the Veteran had an eight-month history of a lump in the area of the mid-shaft of the penis. It was also noted that the Veteran had mild penile curvature in the ventral direction. The letter indicates that the Veteran was still able to have intercourse. Dr. G. observed that a penile plaque was present along the ventral aspect of the penis mid-shaft, and no other palpable abnormalities were found. Dr. G. provided a diagnosis of Peyronie's disease. On VA examination for diabetes mellitus in April 2007, the examiner noted that the Veteran reported experiencing erectile dysfunction for the previous 12 years. To trauma or surgery affecting the penis or testicles was noted. The report contains the Veteran's remarks that vaginal penetration with ejaculation was not possible. The report further reflects that Cialis was effective in treating the Veteran's erectile dysfunction. In August 2007, the Veteran remarked that he suffered from erectile dysfunction. An August 2007 letter from D.W.O., M.D., reflects that the Veteran had significant erectile dysfunction. In October 2007, B.G., the Veteran's spouse, wrote that the Veteran had developed erectile dysfunction that greatly affected their sex life. In June 2008, the Veteran reported that he did not experience erectile dysfunction before he had diabetes. On VA examination in April 2009, the examiner reviewed the Veteran's October 1999 diagnosis of Peyronie's disease. The Veteran reported getting physiological erections at times. It was noted that the Veteran rarely used Cialis, and when he did use Cialis, he was able to have intercourse with ejaculation 50 percent of the time. It was noted that the Veteran was able to have intercourse with ejaculation without medications. The examiner reported that the Veteran's 1999 diagnosis of Peyronie's disease predated the diagnosis of diabetes mellitus. The examiner opined that the penile deformity was not due to the erectile dysfunction due to the diabetes. Based on the evidence of record, the Board finds that the Veteran's erectile dysfunction does not warrant a compensable rating at any time during the period of appeal. A review of the evidence shows that while the Veteran clearly has difficulty getting and maintaining an erection and additionally has a penile deformity. However, the medical evidence of record shows that the penile deformity is due to a cause for which service connection is not in effect-Peyronie's disease. The April 2009 VA examiner specifically noted that Peyronie's disease was diagnosed prior to the Veteran's service-connected diabetes, and the penile deformity was not due to the erectile dysfunction due to diabetes. The Veteran and his spouse are certainly competent to provide evidence regarding experiencing erectile dysfunction and a penile deformity, as those are symptoms capable of lay observation. However, neither the Veteran nor his wife has had the medical training necessary to differentiate between symptoms due to Peyronie's disease or to the service-connected diabetes. As such, the Board finds that the opinion of the April 2009 VA examiner outweighs the statements given by the Veteran and his spouse, as the April 2009 VA examiner was an impartial physician who gave adequate reasons to support the given opinion. As the preponderance of the evidence shows that the Veteran's penile deformity is due to a non-service connected cause, a compensable evaluation is not warranted for erectile dysfunction. See 38 C.F.R. §§ 4.31, 4.115(b), Diagnostic Code 7522. (Parenthetically, the Board notes that the Veteran currently receives special monthly compensation for loss of use of a creative organ. This decision in no way impacts that award.) Conclusion The Board has carefully considered the Veteran's statements and testimony regarding how the symptoms of his bilateral tarsal tunnel syndrome and erectile dysfunction affect his daily activities and life. However, pain and some interference with daily activities are accounted for in the Rating Schedule, as the Rating Schedule is designed to compensate average impairment in earning capacity resulting from impairment. See 38 C.F.R. § 4.1 (2011). Even considering the Veteran's statements, increased evaluations for the claimed disabilities are unfortunately still not warranted, as the appropriate diagnostic criteria have not been met. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service- connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As such, referral for extraschedular consideration is not in order here. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's claimed disabilities, pursuant to Fenderson. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to an initial disability rating in excess of 10 percent for tarsal tunnel syndrome, right foot, is denied. Entitlement to an initial disability rating in excess of 10 percent for tarsal tunnel syndrome, left foot, is denied. Entitlement to an initial compensable disability rating for erectile dysfunction secondary to service-connected diabetes mellitus, type II, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs