Citation Nr: 1000093 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 06-34 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The Veteran had active service from June 1966 to April 1968 and from January 1969 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the right lower extremity is not manifested by incomplete moderate paralysis. 2. The Veteran's peripheral neuropathy of the left lower extremity is not manifested by incomplete moderate paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8521 (2009). 2. The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8521 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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; and (3) that the claimant is expected to provide, 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. The United States Court of Appeals for the Federal Circuit (Federal Circuit) previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. However, in the recent case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the United States Supreme Court (Supreme Court) held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in April 2005, prior to the initial RO decision that is the subject of this appeal. The letter informed him that the evidence must support a worsening of his disabilities to substantiate the claims. The letter also informed him of VA's duty for obtaining pertinent evidence under federal control and that it would aid him in obtaining pertinent evidence not under federal control, but that it was his responsibility to obtain such evidence. Moreover, with respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in October 2008. Any questions as to the appropriate effective date to be assigned are moot as the claims have been denied. 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. 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 and the Veteran has submitted statements. Additionally, he was afforded VA medical examinations, most recently in November 2008, which provided specific medical opinions pertinent to the issue on appeal. 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. 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). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Increased Disability Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Such additional consideration is not currently necessary the current claims are in regards to the Veteran's nerves, not a joint. Merits of the Claim The Veteran contends that his peripheral neuropathy of the lower extremities is more severe than indicated by the 10 percent disability ratings previously granted. His disability has been rated by the applicable diagnostic code provisions providing the rating criteria for disabilities of the external popliteal (common peroneal) nerve. Under these diagnostic code provisions, neuralgia, neuritis, or mild incomplete paralysis warrant a 10 percent disability rating. Moderate incomplete paralysis warrants a 20 percent disability rating, and severe incomplete paralysis warrants a 30 percent disability rating. Complete paralysis; foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of the proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes; warrant a 40 percent disability rating. See Diagnostic Codes 8521, 8621, 8721. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The record generally indicates that the Veteran's bilateral lower extremity peripheral neuropathy is mild, thus, warranting the currently assigned 10 percent disability rating. VA medical records have generally indicated that the Veteran has been found to have peripheral neuropathy. For example, a May 2006 VA podiatry clinic note found him to have non- insulin dependent diabetes mellitus with neuropathy; the examiner found light touch sensation intact for the left foot, while protective sensation was diminished bilaterally. However, other VA medical records, such as a June 2007 VA outpatient treatment record, generally noted him to have an intact gait and sensation. The Veteran was provided a VA examination in June 2005. The neurological examination found no involvement of the peripheral nerves. Examination of the lower extremities revealed normal motor function, but abnormal sensory function, with decreased vibratory sensation. The examiner found the Veteran's reflexes of the knee and ankle to be +3 bilaterally. The examiner found no change in the diagnosis of the Veteran having peripheral neuropathy of the bilateral, lower extremities, secondary to diabetes mellitus, type II. A VA examination report dated in November 2008 shows that the Veteran reported a history of a diagnosis of paralysis of the external popliteal nerve, affecting the left foot. He reported tingling and numbness, pain, anesthesia, weakness of the affected parts and swelling and cramping. He further reported no abnormal sensation and paralysis of the affected parts, though symptoms were worsening. He reported that symptoms occurred constantly and were aggravated by prolonged sitting and standing. The November 2008 VA examiner performed a neurological examination of the lower extremities and found motor function within the normal limits. The examiner further noted sensory function to be abnormal, with findings of left leg decreased light touch and pinprick. The examiner reported using a pin prick and feather to test sensory function. The bilateral lower extremity reflexes revealed knee jerk of 2+ and ankle jerk 2+. The examiner found that in regards to left popliteal and peroneal, the peripheral nerve examination revealed neuralgia. There was sensory deficit demonstrated by left lower extremity decreased light touch and pinprick. There was no motor dysfunction. The November 2008 VA examiner determined that the previous VA diagnosis, as reported by the Veteran, of paralysis of the external popliteal nerve associated with diabetes mellitus, should be changed to paresis of the left external popliteal nerve and left peroneal nerve associated diabetes mellitus. The examiner further stated this to be a progression of the previous diagnosis, and that the most likely peripheral nerve involved was the left external popliteal and left peroneal nerves. The examiner noted that subjective factors were abnormal sensation of the left lower extremity, though the examiner also reported an objective, positive examination. The disability had no effect on the Veteran's usual occupation or daily activities. The record clearly indicates that the Veteran does not have complete paralysis of the lower extremities. None of the medical records indicate that the Veteran has anything more than mild bilateral diabetic peripheral neuropathy of the lower extremities. The November 2008 VA examiner found only sensory dysfunction of the left lower extremity, with decreased light touch and pinprick, but no motor dysfunction. The June 2005 VA examiner similarly found normal lower extremity motor function and only abnormal sensory function, with decreased vibratory sensation. Such manifestations correspond to a rating for mild incomplete paralysis and the 10 percent disability ratings already assigned. No medical evidence has found him to have manifestations of moderate incomplete paralysis such that a 20 percent disability rating or higher would be indicated for either lower extremity. As previously noted, "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. Additionally, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. No evidence of record indicates that the Veteran has anything more than a mild disability. Indeed, the November 2008 VA examiner specifically found his disability to not affect either his occupation or his activities of daily living. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. The Veteran's claims for disability ratings in excess of 10 percent for peripheral neuropathy of the lower extremities are denied. Extra-schedular consideration Finally, the disabilities do not warrant referral for extra- schedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that no exceptional or unusual factors are in evidence, such as marked interference with employment or frequent periods of hospitalization, which would warrant an extraschedular evaluation. ORDER A disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. A disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs