Citation Nr: 1002012 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 06-19 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for diabetic peripheral neuropathy of the right lower extremity. 2. Entitlement to an initial rating higher than 10 percent for diabetic peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1962 to October 1973. This appeal to the Board of Veterans' Appeals (Board) is from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In March 2008 the Board issued a decision denying an additional claim the Veteran had appealed - for an initial compensable rating for his erectile dysfunction (ED), another complication of his diabetes. The Board remanded his remaining claims for higher initial ratings for his diabetic peripheral neuropathy of the lower extremities to RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT The diabetic peripheral neuropathy of the Veteran's lower extremities results in "mild" incomplete paralysis of the right external popliteal nerve, whereas it results in "moderate" incomplete paralysis of the left external popliteal nerve. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating higher than 10 percent for the diabetic peripheral neuropathy of the right lower extremity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8521 (2009). 2. But the criteria are met for a higher 20 percent rating for the diabetic peripheral neuropathy of the left lower extremity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1- 4.14, 4.124a, Diagnostic Code 8521 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties 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 obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). The Veterans Court further held in Vazquez-Flores v. Peake that, for an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate the claim, the medical or lay evidence must show a worsening or increase in severity of the disability and the effect that such worsening or increase has on the claimant's employment and daily life. On appeal, however, in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), the Federal Circuit vacated and remanded important aspects of the Veterans Court's holding in Vazquez- Flores, as well as a related case, Schultz v. Peake, No. 03- 1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific." Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments." Vazquez, 2009 WL 2835434, at 10. The Veterans Court's other holdings in Vazquez-Flores appear to be intact, that is, regarding the above discussion of prejudicial deficiencies in timing or content. In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in November 2004, January 2005, March 2005, and March 2008. These letters informed him of the type of evidence needed to substantiate his claims and apprised him of his and VA's respective responsibilities in obtaining supporting evidence. Keep in mind that his claims initially arose in the context of him trying to establish his underlying entitlement to service connection, since granted, and he has appealed the ratings initially assigned for his disability, so a downstream issue. In cases, as here, where the claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection, and this claim since has been granted and he has appealed a downstream issue such as the initial disability rating assigned, the underlying claim has been more than substantiated - it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been fulfilled. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. And, here, the Veteran received the required SOC in March 2006 discussing the reasons and bases for not assigning initial ratings higher than 10 percent and citing the applicable statutes and regulations. He also received an SSOC in July 2006. Moreover, even more recently, following and as a result of the Board's March 2008 remand, he received an additional VCAA notice letter later in March 2008 - including, as required by Dingess, discussing the downstream disability rating and effective date elements of his claims. And the AMC has since readjudicated his claims in the October 2009 SSOC, including considering any additional evidence received in response to that additional Dingess notice. See again Mayfield IV and Prickett, supra. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO and AMC obtained all relevant medical and other records that he identified. He was also examined for VA compensation purposes in April 2005 and more recently in September 2009, following and as a result of the Board's remand. These examination reports and medical and other evidence on file contain the information needed to assess the severity of his peripheral neuropathy, the determinative issue. 38 C.F.R. §§ 3.327, 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, the AMC has substantially complied with the Board's March 2008 remand directives in further developing the claims by, as mentioned, providing the additional VCAA Dingess notice and having the Veteran examined to reassess the severity of his lower extremity diabetic peripheral neuropathy. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that no further development is needed to meet the requirements of the VCAA or Court. II. Whether the Veteran is Entitled to Higher Initial Ratings for the Diabetic Peripheral Neuropathy in his Lower Extremities In the May 2005 decision at issue, the RO granted service connection for peripheral neuropathy of the Veteran's lower extremities as secondary to his diabetes mellitus that was also service connected in that decision as a residual of exposure to herbicides (specifically, the dioxin in Agent Orange) while in Vietnam. He believes he is entitled to higher initial ratings for his lower extremity diabetic peripheral neuropathy. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that when, as here, the Veteran has appealed the initial ratings assigned following the grant of service connection, VA adjudicators must consider his claims in this context, which includes determining whether to "stage" his ratings to compensate him for times since the effective date of his award when his disabilities may have been more severe than at others). In other words, where the evidence contains factual findings demonstrating 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. Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The diabetic peripheral neuropathy affecting the Veteran's lower extremities has been rated under Diagnostic Code 8521 for paralysis of the external popliteal nerve. DC 8521 provides a 10 percent rating for mild incomplete paralysis of this nerve, a 20 percent rating for moderate incomplete paralysis, and a 30 percent rating for severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8521. The words "mild," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2009). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Applying these criteria to the facts of this case, the Board finds that the diabetic peripheral neuropathy of the Veteran's left lower extremity warrants a higher 20 percent rating, but that the peripheral neuropathy affecting his right lower extremity does not, so the existing 10 percent rating will be confirmed. The evidence for consideration includes the reports of two VA examinations, one dated in April 2005 and the other in September 2009. At the April 2005 VA examination, the Veteran reported pain and numbness in his toes and ball of each foot. The examiner found normal knee and ankle jerks, bilaterally. The examiner also found normal muscle strength, muscle tone and motor function of both lower extremities. As well, the examiner found normal sensation to vibration, pain, light touch and position sense. The examiner diagnosed neuralgia and stated the Veteran's condition affected his occupational and daily activities by decreasing his mobility. At the more recent September 2009 VA examination, the Veteran reported experiencing constant numbness and intermittent pain in his toes and the balls of his feet. The examiner found normal reflexes at the knee and ankle in both lower extremities. The examiner also found active movement against full resistance at the hip, knee, ankle and great toe, although he noted the Veteran had mild difficulty with dorsiflexion and eversion of his left foot. The examiner noted impaired sensation to light touch and pinprick in the soles of each foot and in the first web space between the toes. A nerve conduction study found a mild reduction in left sural sensory amplitude consistent with mild patchy sensory neuropathy in the left lower extremity. As for the right lower extremity, the Veteran's condition does not warrant a higher 20 percent rating because he does not have impairment of reflexes, motor strength or motor function due to his neuropathy. He complained of numbness and pain in his right foot, and his sensory impairment was confirmed by impaired light touch and pinprick tests during the more recent September 2009 VA examination. But as his right-sided neuropathy is wholly sensory, only a mild sensory impairment was detected on physical examination, and no neurological impairment was found on the nerve conduction study, so the neuropathy in this lower extremity is most appropriately rated at the existing 10-percent level. As for his left lower extremity, however, the neuropathy affecting this other extremity warrants a higher 20 percent rating because, in addition to his mild sensory symptoms he had some mild limitation of function. At his September 2009 VA examination, he had some difficulty with dorsiflexion and eversion of his left foot. Additionally, the nerve conduction study detected some impairment of the left sural nerve. But since he still had active strength against full resistance and normal reflexes in this extremity, there is no basis for assigning an even higher rating because it cannot be said that his associated impairment is "severe" (versus "moderate"). So to this extent his appeal is being granted. The Veteran has never had more than "mild" nerve impairment in his right lower extremity and never more than "moderate" nerve impairment in his left, so the Board may not "stage" his ratings under Fenderson. Rather, this represents his maximum level of disability since the effective date of the grant of service connection. III. Extraschedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director of Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2008). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the Board finds that the schedular ratings of 10 percent for the peripheral neuropathy of the right lower extremity and 20 percent for the peripheral neuropathy of the left lower extremity sufficiently contemplate the extent of the Veteran's symptoms and resulting impairment, referral to the Under Secretary for Benefits, the Director of Compensation and Pension Service or other appropriate designate for consideration of an extra-schedular evaluation is not required. In other words, there is no evidence the Veteran's peripheral neuropathy of the lower extremities has caused marked interference with his employment - meaning above and beyond that contemplated by his schedular ratings, or required frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. See Thun. Although the Veteran claims that he left his position as a line lead because he could no longer tolerate long periods of standing required by the position, there is no evidence that his neurological impairment would preclude other types of substantially gainful employment. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating, itself, is recognition that industrial capabilities are impaired. So the Board does not have to refer this case for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for an initial rating higher than 10 percent for the diabetic peripheral neuropathy of the right lower extremity is denied. However, a higher 20 percent initial rating is granted for the diabetic peripheral neuropathy of the left lower extremity, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs