Citation Nr: 0812399 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-16 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a compensable rating for right peroneal nerve neuralgia prior to March 24, 2006. 2. Entitlement to a compensable rating for right peroneal nerve neuralgia from November 8, 2007. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1990 to August 1990 and from September 1993 to October 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for right lower extremity neuralgia of the peroneal nerve, rated noncompensable, effective December 26, 2002. The veteran's claims file is now in the jurisdiction of the Seattle, Washington RO. In December 2007, that RO granted an increased (10 percent) "staged" rating for right lower extremity neuralgia of the peroneal nerve, effective March 24, 2006, and assigned a "staged" reduced (0 percent) rating effective November 8, 2007. The veteran has expressed dissatisfaction with both noncompensable "stages" of the rating, and both are on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In March 2008, a videoconference hearing was held before the undersigned. A transcript of this hearing is associated with the claims file. The matter of the rating for right lower extremity neuralgia of the peroneal nerve from November 8, 2007 is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. FINDING OF FACT Prior to March 24, 2006, there was no competent evidence that the veteran's right peroneal nerve neuralgia involved impairment equivalent to more than mild (moderate) incomplete paralysis of that nerve. CONCLUSION OF LAW A compensable rating is not warranted for the veteran's right peroneal nerve neuralgia prior to March 24, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.31, 4.124, 4.124, 4.124a, Diagnostic Code (Code) 8723 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the rating decision on appeal granted service connection, assigned a disability rating and an effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A March 2005 statement of the case (SOC), and June 2006 and December 2007 supplemental SOCs provided notice on the "downstream" issue of entitlement to an increased initial rating and readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). He has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. It is not alleged that notice in this matter was less than adequate. The veteran's pertinent treatment records have been secured. The RO arranged for VA examinations (in March 2006 and in November 2007). The veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Factual Background November 1999 to May 2006 and October 2007 to November 2007 VA outpatient treatment records reveal that in December 2002 the veteran underwent right ankle reconstruction surgery. In March 2003, he began to complain of minimal pain and numbness on the outside portion of his right foot. Subsequently, he periodically complained of numbness and/or soreness in his right foot. On August 2003 VA examination of the right ankle, it was noted that he complained of numbness in the mid-toe area laterally. On March 2004 examination by his orthopedic surgeon, he complained of soreness and numbness in his lateral toes; it was noted that this was consistent with his surgical history and, as the veteran did have some damage to branches of the sural nerve, it was doubted hat this would improve. In February 2005, the veteran complained that he had lost a lot of sensation in the lateral right foot, but still had feeling on pressure. During this time period, there were no appreciable complaints regarding loss of strength or range of motion in his right foot. On March 24, 2006 VA examination, it was noted that the veteran did not wear a brace, or use corrective shoes, orthotics, or other ambulatory aids. He reported losing the toenails of his 4th and 5th digits 3-4 times a year; not being able to feel pain on his 4th and 5th toes, and along the outside area of his foot; and occasionally feeling tingling sensations from the ankle down into the top of his right foot. On neurological examination, vibratory sensations were absent in the right ankle and foot. Dorsiflexion, plantar flexion, inversion and eversion movements against gravity and resistance were diminished in the right foot (+2/5 in the right foot compared to +3-4/5 in the left foot). Pain and guarded movement was also noted based on the veteran's facial expressions and subjective comments. There was no evidence of fatigue, weakness, or lack of endurance upon repetitive bilateral use of the feet. The veteran was referred for an EMG studies, which were completed in April 2006, and showed normal test results for the right lower extremity with no definite evidence of neuropathy, lumbosacral plexopathy, lumbar radiculopathy or myopathy. The examiner also stated: "Although well within normal limits, the sensory nerve action potential (SNAP) amplitude of the right sural nerve was somewhat lower than on the left, and with [the veteran's] complaints of numbness affecting the lateral aspect of the right foot, a very mild, partial injury of the sural nerve cannot be excluded." C. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedular rating, which is based on average impairment of earnings capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In a claim disagreeing with the initial rating assigned with a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). As is noted above, the RO has assigned staged ratings, as reflected by the characterization of the issues. As neurological findings have not been consistent throughout, staged ratings are appropriate. The veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Neuralgia of the deep peroneal nerve is rated under Codes 8723, 8523, for neuralgia and paralysis of that nerve. A 0 percent rating is warranted when there is mild incomplete paralysis. The next higher rating, 10 percent, is warranted when there is moderate incomplete paralysis. See 38 C.F.R. § 4.124a. The term "incomplete paralysis" with 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. See note preceding Code 8510. 38 C.F.R. § 4.124a. It is well-established in the record that prior to March 2006, the veteran did not experience any right peroneal paralysis, and that his [deep peroneal] nerve involvement is wholly sensory. Prior to his March 2006 VA examination, he only complained of numbness, pain, or soreness in his right foot; however, there were no clinical findings of sensory deficit. Such a disability picture is consistent with a 0 percent rating under Codes 8723, 8523 (for mild incomplete paralysis). The next higher (10 percent rating) requires moderate incomplete paralysis; a disability picture that would include evidence of additional factors such as loss of strength or motion. There is no evidence in the record that at any time during the appeal period, prior to March 26, 2006, the veteran exhibited decreased ranges of right ankle/foot motion or loss of strength due to impaired peroneal innervation. It was not until the March 24, 2006 VA examination that he showed loss of strength in his right foot, signs of guarded movement, and decreased ability to fully flex his right foot and ankle. The findings objectively shown prior to March 24, 2006 correlate closely with the schedular criteria for a 0 percent rating for right lower extremity neuralgia of the peroneal nerve. As the additional factors of loss of strength or in range of motion required for a 10 percent rating (for moderate incomplete paralysis of the deep peroneal nerve) were not shown prior to March 24, 2006, a compensable rating prior to that date is not warranted. The preponderance of the evidence is against this claim; hence, the reasonable doubt provisions cited above do not apply and the claim must be denied. ORDER A compensable rating for right peroneal nerve neuralgia prior to March 24, 2006 is denied. REMAND As noted above, March 2006 VA examination, found diminished strength of +2/5 in the right foot compared to +3-4/5 in the left foot. Movements were noted to be painful and guarded. On April 2006 EMG testing, although the veteran's right lower extremity were within normal limits, it was felt that a very mild, partial sural nerve injury could not be excluded. On November 2007 VA examination, the veteran complained of constant numbness without any flare-ups in his right foot and of inability to feel stubbing of the 3rd, 4th, and 5th toes. He reported losing the toenails on his right 3rd and 4th toe twice since the December 2002 surgery, and the toenail on his 5th right toe more frequently. Vibratory sensations were absent from the 3rd to the 5th toes and were noted to be stronger in the left foot than the right foot for the 1st and 2nd toes. At the March 2008 videoconference hearing, the veteran testified that his right foot did not improve since the March 2006 VA examination, and that he has always experienced numbness and loss of strength since his right ankle surgery in December 2002. He denied having sensation in his foot other than ever-present tingling. As an example, he indicated that if he were to drop something on his right foot, he would not be able to feel anything other than the pressure of something having landed on his foot. In light of the allegations of increased severity of disability, a contemporaneous VA examination is necessary. 38 C.F.R. § 3.327(a). Accordingly, the case is REMANDED for the following: 1. The RO should secure for the claims file all records of VA treatment the veteran has received for his right peroneal nerve neuralgia since May 2006. 2. The RO should then arrange for a VA neurological evaluation of the veteran to determine the current severity of his service-connected right peroneal nerve neuralgia and its impact on his ability to function. The examiner should review the veteran's claims file in conjunction with the examination. The examiner should specifically opine whether the disability picture/impairment associated with the veteran's right deep peroneal nerve neuralgia is one consistent with moderate incomplete paralysis of that nerve, or approximates that level of severity. The examiner should explain the rationale for all opinions given. 3. The RO should then re-adjudicate the matter of the rating for right peroneal nerve neuralgia from November 8, 2007 (specifically discussing any showing of improvement since the March 006 examination). If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs