Citation Nr: 0813697 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-00 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a separate compensable grant of service connection for peripheral neuropathy of the feet currently rated as a component of the veteran's service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from May 1965 to May 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board also notes that additional evidence has been received since the case was certified for appeal. That evidence includes private outpatient treatment records. The veteran submitted a waiver of regional office consideration in March 2005. Accordingly, the Board may proceed with appellate review at this time. FINDINGS OF FACT 1. The veteran is service connected for diabetes mellitus, with peripheral neuropathy of the feet. 2. The medical evidence demonstrates mild, but less than moderate, symptoms of peripheral neuropathy of both feet. CONCLUSION OF LAW The criteria for a separate 20 percent combined evaluation, but no higher, for peripheral neuropathy of the feet have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.25, 4.119 Diagnostic Code (DC) 7913; 38 CFR § 4.124a DCs 8520, 8521, 8524, 8526 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking entitlement to a separate compensable grant of service connection for peripheral neuropathy of the feet. The Board has reviewed all of the evidence in the veteran's claims file, with an emphasis on the medical evidence for peripheral neuropathy of the feet. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. At the outset, the Board acknowledges that the veteran is already service connected for type 2 diabetes mellitus, with peripheral neuropathy of the feet. In a July 2004 rating decision, the RO granted the veteran a 20 percent rating, effective February 26, 2003, for this disorder under DC 7913. Under DC 7913, Note 1, compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Note 1 additionally states that noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Thus, if it is shown that the veteran's neuropathy of the feet is compensable in degree, then a separate evaluation in addition to the currently assigned 20 percent for the diabetes process would be appropriate. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1. In addition, 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. See 38 C.F.R. § 4.7 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Again, the question for consideration is whether the veteran's peripheral neuropathy is compensable. To make this determination, the Board calls attention to 38 C.F.R. § 4.124a, addressing neurologic impairment. Specifically, DCs 8520-8529 addresses neurologic impairment of the lower extremities. Of those code sections, DCs 8520, 8521, 8524, and 8526 are most beneficial to the veteran. Indeed, those DCs provide a 10 percent evaluation for mild neurologic deficit. After reviewing the evidence on file, the Board finds that, in addition to the current 20 percent evaluation for type 2 diabetes mellitus, with peripheral neuropathy of the feet, the veteran is also entitled to a separate compensable rating for peripheral neuropathy of both feet under 38 C.F.R. § 4.24a, DCs 8520, 8521, 8524, and 8526, The veteran's medical records contain both abnormal and normal findings regarding the sensory integrity of his feet. The Board will first consider the abnormal neurological findings. A February 2001 record indicates an abnormal foot exam with no sensation in either foot. A July 2001 VA record also indicates slightly decreased sensation over the dorsal surface of his toes. Additionally, numb toes were noted in a February 2002 VA outpatient treatment record. Another record in April 2004 indicates numbness or tingling of the feet. These symptoms demonstrate mild neurological problems and warrant a 10 percent rating for each foot. While mild symptoms are shown, warranting a 10 percent rating, a higher evaluation is not justified. Indeed, to achieve the next-higher 20 percent rating under DC 8520, 8521, 8524, or 8526, the evidence must demonstrate moderate incomplete paralysis. Moreover, a note to 38 C.F.R. § 4.124a instructs that when the neurologic involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. In the present case, moderate disability has not been demonstrated. Indeed, VA treatment records in August 2000 and February 2001 indicate that the veteran has intact sensory function bilaterally of the upper and lower extremities. Additionally, VA records from February 2003 and April 2004 note that the veteran's sensation in both feet is intact in all areas. The Board has considered a private treatment record from February 2005 which states that the veteran has a moderately severe axonal loss and demyelinating peripheral polyneuropathy. Despite the characterization of the veteran's symptoms as "moderately severe," the Board finds that the symptoms are, nonetheless, solely sensory. Specifically, the evidence does not show weakness, fatigability, diminished mobility, or lack of coordination. Moreover, the extent of diminished sensation shown in the treatment reports, as detailed above, is no more than mild in degree, especially considering the presence of intermittently normal findings. In sum, mild neurological symptoms have been shown. Therefore, a 10 percent rating applies to each foot. Pursuant to a note to 38 C.F.R. § 4.124a, which states that "the ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor," these individual ratings of 10 percent combine to a single 20 percent rating. See 38 C.F.R. § 4.25 (2007). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in March 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The veteran has additionally submitted private treatment records. In addition, he was afforded a VA medical examination in March 2004. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A separate 20 percent evaluation for peripheral neuropathy is granted, subject to the rules governing payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs