Citation Nr: 0811488 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 04-25 257 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 10% for right lower extremity peripheral neuropathy (PN) prior to August 2006. 2. Entitlement to an initial rating in excess of 10% for left lower extremity PN prior to August 2006. 3. Entitlement to a rating in excess of 20% for right lower extremity PN since August 2006. 4. Entitlement to a rating in excess of 20% for left lower extremity PN since August 2006. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from July 1961 to July 1963, and from October 1963 to September 1974. This appeal to the Board of Veterans Appeals (Board) originally arose from a May 2003 rating action that granted service connection for PN of each lower extremity and assigned initial 10% ratings therefor from June 2002. Because the claims for higher initial ratings involve requests for higher ratings following the initial grants of service connection, the Board has characterized them in light of the distinction noted by the U.S. Court of Appeals for Veterans Claims (Court) in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from those for increased ratings for already service- connected disability). By rating action of October 2006, the RO granted 20% ratings for PN of each lower extremity from August 2006; the matters of initial ratings in excess of 10% prior to August 2006 and 20% since August 2006 remain for appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. Prior to August 2006, the veteran's right lower extremity PN was manifested by complaints of pain, with decreased sensation and perception but good motor strength shown on examinations, and was productive of no more than mild incomplete neuropathy. 3. Prior to August 2006, the veteran's left lower extremity PN was manifested by complaints of pain, with decreased sensation and perception but good motor strength shown on examinations, and was productive of no more than mild incomplete neuropathy. 4. Since August 2006, the veteran's right lower extremity PN has been manifested by complaints of pain, with decreased sensation and perception but good motor strength shown on recent examination, and is productive of no more than moderate incomplete neuropathy. 5. Since August 2006, the veteran's left lower extremity PN has been manifested by complaints of pain, with decreased sensation and perception but good motor strength shown on recent examination, and is productive of no more than moderate incomplete neuropathy. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10% for right lower extremity PN prior to August 2006 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, and Part 4, including §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.124a, Diagnostic Code 8620 (2007). 2. The criteria for an initial rating in excess of 10% for left lower extremity PN prior to August 2006 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, and Part 4, including §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.124a, Diagnostic Code 8620 (2007). 3. The criteria for a rating in excess of 20% for right lower extremity PN since August 2006 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, and Part 4, including §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.124a, Diagnostic Code 8620 (2007). 4. The criteria for a rating in excess of 20% for left lower extremity PN since August 2006 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, and Part 4, including §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.124a, Diagnostic Code 8620 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, the VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that, to substantiate a claim, he must provide, or ask the VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by his demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life (such as a specific measurement or test result), the VA must furnish him at least general notice of that requirement. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. See Vazquez-Flores. In this case, a post-rating February 2006 RO letter informed the veteran and his representative of the VA's responsibilities to notify and assist him in his claims, and to advise the RO as to whether there was medical evidence (such as statements from doctors and examinations containing clinical findings) showing treatment for his disabilities, and lay evidence (such as statements from people who witnessed his symptoms and how they affected him) demonstrating a worsening of disability. That letter also provided notice of what was needed to establish entitlement to a higher rating (evidence showing that a disability had worsened). The October 2006 Supplemental Statement of the Case (SSOC) informed the veteran that, if an increase in disability was found, a disability rating would be determined by applying relevant DCs which provided for a range in severity from 0% to 100%, based on the nature and symptoms of the condition, their severity and duration, and their impact upon employment. The 2006 SSOC also provided examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical records, employer statements, and other evidence showing an increase in the disability. Thereafter, the veteran was afforded opportunities to respond. The Board finds that the veteran has thus received sufficient notice of the information and evidence needed to support his claims, and has been provided ample opportunity to submit such information and evidence. The February 2006 RO letter also notified the veteran and his representative that the VA would make reasonable efforts to help him get evidence necessary to support his claim, such as medical records (including private medical records), if he gave it enough information, and, if needed, authorization, to obtain them. That letter further specified what records the VA had received; what records the VA was responsible for obtaining, to include Federal records; and the type of records that the VA would make reasonable efforts to get, and requested the veteran to furnish any evidence that he had in his possession that pertained to his claims. The Board thus finds that the 2006 RO letter and SSOC collectively satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board points out that, in the decision of Pelegrini v. Principi, 17 Vet. App. 412 (2004), the Court held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by the VA that the claimant provide any evidence in his possession that pertains to the claim. As indicated above, all 4 content of notice requirements have been met with in this appeal. Pelegrini also 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, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matters now before the Board, a document meeting the VCAA's notice requirements was not furnished to the veteran prior to the initial May 2003 rating action on appeal. However, the Board finds that the delay in issuing the full 38 U.S.C.A. § 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudications, in that his claims were fully developed and readjudicated after notice was provided. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.2006). As indicated above, the veteran and his representative have been notified of what was needed to substantiate his claims, and afforded numerous opportunities to present information and/or evidence in support thereof. As a result of RO development, comprehensive documentation, identified below, has been associated with the claims folder and considered in connection with the veteran's appeal. After the 2006 RO notice letter, the RO gave the veteran further opportunities to furnish information and/or evidence pertinent to the claims before it readjudicated them on the basis of all the evidence of record in October 2006 (as reflected in the SSOC). More recently, in March 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that, in rating cases, a claimant must be informed of the rating formula for all possible schedular ratings for an applicable rating code. In this case, the Board finds that this was accomplished in the March 2004 Statement of the Case, and that this suffices for Dingess/Hartman. The Court also held that the VA must provide information regarding the effective date that may be assigned; such notice was provided in the October 2006 SSOC. Additionally, the Board finds that all necessary development on the claims currently under consideration has been accomplished. The RO, on its own initiative, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate his claims, to include obtaining extensive post-service VA medical records through 2007. A copy of the 1991 Social Security Administration determination granting the veteran disability benefits, together with the medical records underlying that determination, have been associated with the claims folder. In May 2003 and August 2006, the veteran was afforded comprehensive VA examinations in connection with his claims; these reports are of record and have been considered in adjudicating these claims. Significantly, the veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence, in addition to that noted above, that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of 2 ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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 the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. Under the criteria of 38 C.F.R. § 4.124a, DC 8620, mild incomplete sciatic nerve neuropathy warrants a 10% rating. 20%, 40%, and 60% ratings require moderate, moderately severe, and severe (with marked muscular atrophy) incomplete neuropathy, respectively. An 80% rating requires complete sciatic nerve neuropathy, with dangling of a foot and foot drop, no active movement of the muscles below the knee is possible, and knee flexion is weakened or (very rarely) lost. Considering the evidence in light of the criteria of DC 8620, the Board finds that the record does not support a rating in excess of 10% for PN of either lower extremity at any time since the initial grant of service connection in 2002 and prior to August 2006, as the medical evidence shows no more than mild incomplete sciatic neuropathy during this period. On June 2002 VA outpatient examination, the veteran complained of bilateral lower extremity and foot numbness, tingling, and pain. Current examination showed 1+ pedal edema bilaterally. The assessment was PN. July electromyographic and nerve conduction studies of the lower extremities showed chronic sensorimotor, primarily axonal PN. On November neurological evaluation, the veteran complained of bilateral distal lower extremity pain, numbness, and tingling, but denied severe lower extremity weakness. Motor examination showed 5/5 strength in the quadriceps bilaterally. Deep tendon reflexes were absent in both lower extremities, and sensation was decreased bilaterally below the knees. Coordination was intact, and gait normal. The veteran could not walk on his heels or toes. The impressions included PN. The veteran had no complaints on January 2003 VA outpatient examination and denied pedal edema, and the examiner noted that he continued to do well. On April neurological evaluation, the veteran complained of bilateral lower extremity pain, but denied severe weakness. Motor examination showed 5/5 strength in the lower extremities except for the feet, which were 4+. Deep tendon reflexes were absent in both lower extremities, and sensation was decreased bilaterally below the knees. Coordination was intact, and gait normal. The veteran could not walk on his heels or toes. The examiner commented than an extensive PN work-up showed normal results. The impressions included PN. On May 2003 VA neurological examination, the veteran complained of bilateral leg discomfort on arising in the morning, with numbness and tingling in the lower extremities. On examination, there was decreased sensation and perception in the lower extremities and feet, which findings were consistent with a stocking distribution. The assessment was diabetic neuropathy involving both lower extremities. On June 2003 VA outpatient examination, the veteran complained of a dull and tingling sensation in the right foot. Examination showed decreased sensation in both feet. There was minimal right foot edema and no erythema. The assessment was PN. When seen again in July, the veteran complained of leg pain, but denied pedal edema. Current examination showed intact pedal pulses, and the assessments included PN. On neurological evaluation in August, the veteran complained of paresthesias in the knees down to the toes bilaterally. He denied any motor symptoms accompanying the neuropathy. Motor examination showed 5/5 strength in the lower extremities. Sensation was decreased bilaterally in the lower extremities. Gait was good, but the veteran had moderate difficulty with tandem gait. The Romberg sign was negative. The impression was diabetic neuropathy. In December, the veteran complained of bilateral foot numbness. Examination showed 1+ leg edema bilaterally. The feet were warm and dry, and without ulcers. Pedal pulses were palpable, and neurological examination showed good strength. On January 2004 VA neurological evaluations, the veteran complained of lower extremity paresthesia, with a predominant sensation of burning in the feet. On examination, motor strength was 5/5 throughout, with decreased sensation in the lower extremities. Reflexes were hyper throughout, with downgoing toes bilaterally. The Romberg sign was negative. Gait, including tandem gait, was slow and narrow-based, but normal. The impression was diabetic neuropathy with stable symptoms. On June podiatric evaluation, the veteran complained of neuropathy with burning in the left leg. Current examination showed no foot edema bilaterally. There was profound loss of feeling in the feet. Reflexes were intact and equal in the Achilles and Babinski bilaterally. Gait was normal on another examination a couple of days later, and the assessment was PN, on medication with fair control. On August 2004 VA neurological evaluation, the veteran complained of lower extremity weakness and right foot numbness. On examination, motor strength was 5/5 throughout, except for 4+/5 plantar flexion bilaterally and 4/5 left knee flexion. Sensation was decreased in the lower extremities. The Romberg sign was negative. Gait was normal, with difficulty with tandem gait. The impression was neuropathy, likely secondary to a combination of diabetes and B-12 deficiency. Subsequent examination in December showed a normal gait. The veteran denied muscle pain or weakness or focal deficits. The assessment was PN under reasonable control with medication and B-12 injections. November 2005 and February and June 2006 VA podiatric evaluations each showed palpable pedal pulses and absent protective sensation bilaterally. There was no erythema or edema. Muscle strength was 5/5, with full, pain-free range of motion. The assessments in June included diabetes mellitus with sensory PN. Clearly, the evidence provides no basis for more than an initial 10% rating under DC 8620 for PN of either lower extremity prior to August 2006, as there has been no evidence of the symptoms required for a 20% rating since the initial grant of service connection, i.e., moderate incomplete neuropathy. In this regard, the Board notes that the veteran's lower extremity symptoms during this period have primarily been decreased sensation and perception, but good motor strength was consistently shown on examinations. Although December 2003 clinical findings included right ankle weakness and instability, for which the veteran was referred to orthotics for a brace, and he subsequently obtained a brace for the left ankle as well, the Board notes that he is separately service connected for Charcot's arthropathy of the feet, and thus no symptomatology related thereto may be considered in evaluating the service-connected lower extremity PN. Neither does the record support a rating in excess of 20% for PN of either lower extremity any time since August 2006, as the medical evidence shows no more than moderate incomplete sciatic neuropathy during this period. On August 2006 VA neurological examination, the veteran complained of progressive increasing numbness in the lower extremities, with a constant, burning pain, tingling, paresthesia, and sensory loss that resulted in stumbling, tripping, and falls secondary to instability and loss of sensation. On examination, the veteran had difficulty standing, with instability, and he needed bracing to rise from the seated to the standing position. He ambulated 100 feet very slowly and utilizing a cane and holding onto a side rail. Gait was very wide-based and antalgic. There was postural instability. Foot strike was abnormal, utilizing a flatfoot or toe strike. Deep tendon reflexes were absent at the patella and Achilles bilaterally. Significantly, motor strength was +5/5 in the knees and +4/5 in the ankles and feet. Babinski signs were negative bilaterally, with downgoing toes. There was no clonus. There were marked sensory abnormalities in the entire lower legs and feet, and marked pes planus. The diagnoses were severe PN and diabetic Charcot's arthropathy. The evidence provides no basis for more than a 20% rating under DC 8620 for PN of either lower extremity since August 2006, as there has been no evidence of the symptoms required for a 40% rating during this period, i.e., moderately severe incomplete neuropathy. In this regard, the Board notes the significant August 2006 examination ambulatory symptoms and findings of marked sensory abnormalities but good lower extremity motor strength, as well as Charcot's arthropathy of the feet, for which the veteran is separately service connected, and marked pes planus, for which he is not service connected; thus, no symptomatology related to the Charcot's arthropathy or pes planus may be considered in evaluating the service-connected lower extremity PN. Additionally, the Board finds that there is no showing that, at any point since the effective date of the grant of service connection, the veteran's PN of either lower extremity has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher rating on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The veteran's symptoms and clinical findings as documented in numerous medical reports from 2002 to 2006 do not objectively show that his bilateral lower extremity PN markedly interferes with employment (i.e., beyond that contemplated in the various assigned ratings throughout the periods under consideration), or requires frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards. In an August 2005 statement, the veteran's employer stated that he terminated his full-time employment in April 2005 due to voluntary retirement, not any disability. As noted above, the significant lower extremity symptomatology resulting from the veteran's separately service-connected Charcot's arthropathy of the feet and his non-service-connected marked pes planus may not be considered in evaluating the service- connected lower extremity PN. The Board thus finds that schedular ratings for PN are adequate in this case, and concludes that the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for additional staged rating pursuant to Fenderson, inasmuch as the factual findings do not show distinct time periods prior to and since August 2006 where the veteran's lower extremity PN exhibited symptoms that would warrant different ratings, and that the claims for an initial rating in excess of 10% for PN of either lower extremity prior to August 2006, and a rating in excess of 20% for PN of either lower extremity since August 2006 must be denied. 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 the claims, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 10% for right lower extremity PN prior to August 2006 is denied. An initial rating in excess of 10% for left lower extremity PN prior to August 2006 is denied. A rating in excess of 20% for right lower extremity PN since August 2006 is denied. A rating in excess of 20% for left lower extremity PN since August 2006 is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs