Citation Nr: 1007123 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-19 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating greater than 20 percent for service-connected diabetic neuropathy of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from October 1959 to December 1984. This appeal to the Board of Veterans' Appeals (Board) arises from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's diabetic neuropathy of the right foot is manifested by subjective complaints of tingling and "electric shock" feelings and objective findings that are negative for foot drop with no signs of polyneuropathy or radiculopathy on electrodiagnostic testing. CONCLUSION OF LAW The criteria for a disability rating greater than 20 for diabetic neuropathy of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8521 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal arises out of the Veteran's claim that his service-connected diabetic neuropathy of the right foot is more disabling than currently evaluated. Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Factual Background Service treatment records show that the Veteran was first diagnosed with diabetes mellitus in August 1984. In May 2002 the Veteran filed a claim for entitlement to service connection for diabetes. He was afforded a VA diabetes examination in May 2002 which showed diabetic neuropathy of the bilateral upper and bilateral lower extremities. By rating decision dated in May 2002 the RO granted service connection for diabetes and assigned a 20 percent disability rating effective May 23, 2001. The RO also granted service connection for diabetic neuropathy of the bilateral upper and lower extremities and assigned separate 10 percent disability ratings for each extremity, also effective May 23, 2001. In November 2002 the Veteran filed a claim for increase. He was afforded a peripheral nerves examination in August 2003 and by rating decision dated in October 2004 the RO increased the Veteran's disability rating for diabetic neuropathy of the right foot from 10 percent to 20 percent disabling effective November 25, 2002, the date of the Veteran's claim for an increased rating. The Veteran disagreed with the 20 percent rating assigned in November 2004 and perfected an appeal in May 2005. Evidence relevant to the current level of severity of the Veteran's service-connected peripheral neuropathy of the right foot includes VA examination reports dated in August 2003, January 2005, and December 2007. During the August 2003 VA examination the Veteran complained of intermittent tingling in both his hands and legs as well as "no feeling" in his lower legs and feet for the past year. He came to the examination using two crutches as his balance was impaired. He stated that he never goes out alone and never without his cane. The Veteran noted a steady increase in his neurological abnormality. He has had weakness in the arms and hands off and on for many years with intervals of normal sensation, but the numbness and aching pain in the feet was of a two to three year duration and was getting worse. The Veteran was not on any specific treatment for this other than pain medications which have been tried. He was being a narcotic preparation by history. The numbness in the legs as well as the unsteadiness that the Veteran experiences on standing interferes with his daily activities. He would not feel safe to walk out alone without the support of his wife. On occasion, his hands feel normal, but other times he notices tingling and weakness and he has, on occasion, dropped items. The nerve involved was reportedly the peripheral nerves bilateral to the legs and median nerve bilaterally. From the Veteran's history, no neurological evaluation had been performed at the time. Upon physical examination the Veteran walked with a somewhat unsteady gait using two crutches. When rising from a chair to a standing position, the veteran was moderately unsteady and needed the support of the examiner to get from the chair to the couch. He gave a lucid history of his condition. Cranial nerves and optic fundi were within normal limits. It was noted that the Veteran was blind in the right eye owing to a detached retina, likely associated with diabetes. Deep tendon reflexes in the upper extremities were normal and the Veteran had normal knee jerks but bilaterally absent ankle jerks. Pin prick testing showed a diminution of sensation in the lower extremities bilaterally and there was a conspicuous lack of hair on the peripheral parts of both legs. There was also diminished vibration sense in the feet as compared with the patella. The Veteran's hands were examined and there did seem to be a slight diminution of sensation bilaterally in the thumb and index finger, though this is by history only, this was not demonstrable during the examination. Phalan's test was negative for numbness but the Veteran did complain of pain. When questioned, the Veteran stated that the neurological sings started as far as he can recall about two to three years following the diagnosis of diabetes in the late 1980s. Nerve conduction studies and an electromyography (EMG) were ordered but were never associated with the claims file. The diagnosis was increasing peripheral neuropathy involving the arms and complete loss of tactile sensation involving the feet, as likely as not associated with diabetes. During the January 2005 VA examination the Veteran complained of sharp pain in his legs constantly since the 1970s. The pain typically is from the knees down. The Veteran stated that this pain interfered with his sleep. He reported that walking helped to relieve some of the pain. He stated that he has weakness in both legs, and he has been using crutches for the past one-and-a-half years, he stated, because he was having weakness and tending to be imbalanced. The Veteran also described tingling that occurs on the bottom of his feet at least once per day. It typically lats for several minutes at a time. Walking will help this tingling to go away. He stated that although he has the pain in his legs he has had no feeling or sensation in his legs from the ankles down for the past two years. He has been told that he has difficulty with the pulses in his left leg especially. Because of night cramps in the legs, he has been taking some quinine sulfate. This has not provided any relief. The Veteran was legally blind and attended a day treatment center. He was not required to do much walking and was reportedly supervised for most of the day. The nerve involved was the nerve supply to the legs from the knees down. This involved several cutaneous nerves and the tibial and fibular nerves. Upon physical examination the examiner noted that the Veteran's disability may be the result of diabetes mellitus of long duration. A known complication of diabetes is peripheral neuropathy. The Veteran has no reported sensation to monofilament and sterile needle in the feet up past the ankle to the mid-calf region on both sides. The motor control was limited by the Veteran's weakness that he reported in his legs. He also reported a feeling of unsteadiness which he was not able to better define. He did not have a foot drop, but he has an unawareness of where his feet are because of the lack of sensation. No joint was affected. On physical examination, sensation was reported as decreased in legs, arms, and face in a non-anatomic distribution. Strength in both arms and legs was normal. Reflexes were symmetric and 1+ to 2+. No atrophy was noted. The examiner gave a diagnosis of paresthesias of uncertain etiology and stated that they were unable to determine whether this condition was related to diabetes without resorting to speculation. In an effort to better document and corroborate the Veteran's complaint of weakness of the legs and diminished sensation, electrodiagnostic testing was requested. Results of these tests were released in March 2005 and showed that the left peroneal, tibial, and sural nerve conduction studies were within normal limits. There was no sign of polyneuropathy. The report from that evaluation noted that there was no sign of polyneuropathy by electrodiagnostic testing. Clinically the symptoms sounded more like claudication as the Veteran complained of pain and weakness in the legs with walking (10 minutes) that could be relieved with rest. The diagnosis was paresthesias with normal electrodiagnostic testing. During the December 2007 VA examination the Veteran complained of severe "electrical shock" pains in the right leg. He stated that no one wanted to believe him or do any tests on him and in 2004 he had nerve tests done that were normal. He recently had this reevaluated. He stated that the pain is intermittent and that he has gotten testing done on "good days" and he feels this does not reflect him at his worst due to scheduling issues. Motor examination revealed normal strength in all major muscle groups of both feet and legs. Sensory function report shows that the Veteran was unable to feel either light touch or pinprick in either foot. Peripheral nerve reflex examination revealed 1+ for bilateral knee and ankle reflexes. Bilateral plantar flexion was normal. There was no muscle atrophy present and no abnormal muscle tone or bulk. There were no tremors, tics, or other abnormal movements and there was no affect of the nerve disorder on the function of any joints. Gait and balance were normal. Nerve condition results were as follows: The right peroneal and tibial motor studies were within normal limits. The right sural sensory response was absent. Electromyography (EMG) of the right leg was normal. There was no sign of radiculopathy to account for his complaints and it was likely that this was referred pain. The absent sural sensory response may be related to age or reflect mild neuropathy from the Veteran's diabetes mellitus. The diagnosis was low back pain with normal electrodiagnostic testing and mild peripheral neuropathy due to diabetes mellitus. The December 2007 VA examination report also shows that the Veteran was seen in the Electrodiagnostic Laboratory in November 2007 as an outpatient for evaluation of right leg pain and tingling for the past 20 years. The Veteran complained of tingling and "electric shock" feelings down the right leg with lower back pain. Sometimes he feels the knees are going to "give out" and the entire right leg "cramps." The right lateral foot tingles. The Veteran denied burning. Past medical history included diabetes with no history of thyroid disease or alcohol intake reported. Physical examination revealed no atrophy in the foot intrinsics. Sensation was decreased to vibration in the entire right leg (non-dermatomal) without clear stocking sensory loss. Tone was normal. Strength was 5/5 in the legs. Reflexes were 2+ in the knees and absent in the ankles. Nerve conduction studies were normal. The December 2007 VA examination report also shows that the Veteran was seen for a Neurology EMG consult in March 2005. At that time the Veteran complained of numbness and tingling on the bottoms of the feet, pain in the arms and legs as well as the lower back, weakness in the legs, and cramping in the legs, especially at night. The Veteran denied burning. He had a normal NCS of the right arm in the past. Physical examination revealed no atrophy. Sensation was decreased in legs, arms, and face (non-anatomic). Tone, right arm strength, and left arm strength were normal. The impression was that the left peroneal, tibial, and sural conduction studies were within normal limits. There was no sign of polyneuropathy by electrodiagnostic testing. Clinically the symptoms sounded more like claudication as the Veteran complained of pain and weakness in the legs with walking (10 minutes) that can be relieved with rest. The December 2007 VA examiner opined that the Veteran's neuropathy of the right foot affected the Veteran's usual daily activities. The examiner also noted that the new onset, i.e., normal NCV (nerve conduction velocity) of the left leg in 2005, of mild diabetic neuropathy was not compatible with the history of symptoms for 37 years. The inability to feel either light touch or pinprick at all was not compatible with the Veteran's recent mild NCV findings. Diabetic neuropathy gives consistent findings and would not be affected by the Veteran having a "good day" as he claimed he did on the day of the NCV. Also of record are VA medical records dated through February 2009. These records show treatment for the Veteran's many medical conditions, to include diabetic neuropathy of the right foot. Diagnostic Criteria The Veteran's peripheral neuropathy of the right foot is rated as 20 percent disabling on the basis of moderate paralysis of the external popliteal nerve (common peroneal). See 38 C.F.R. § 4.124a, DC 8521. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. Under DC 8521 a 10 percent disability rating is warranted when there is evidence of mild incomplete paralysis, a 20 percent disability rating is warranted when there is evidence of moderate incomplete paralysis, a 30 percent disability rating is warranted when there is evidence of severe incomplete paralysis, and a 40 percent disability rating is warranted when there is evidence of complete paralysis of the nerve with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers the entire dorsum of the foot and toes. See 38 C.F.R. § 4.124, DC 8521. Disability ratings for diseases of the peripheral nerves are based on relative loss of function of the involved extremity with attention to the site and character of the injury, the relative impairment of motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120. The words "slight," "moderate" and "severe" are not defined in the 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. Analysis A review of the evidence discloses that the Veteran's service-connected peripheral neuropathy of the right foot is generally manifested by subjective complaints of tingling and "electric shock" feelings. However, despite the Veteran's repeated complaints, there are no findings which more closely approximate severe incomplete paralysis of the nerve. VA examination reports dated in August 2003, January 2005, and December 2007 are all negative for foot drop. Also, the January 2005 report shows that there is no sign of polyneuropathy on electrodiagnostic testing. EMG testing in November 2007 was also normal and there was no sign of radiculopathy. The December 2007 examination noted normal muscle strength. Therefore, there is no reasonable basis to conclude that the Veteran's peripheral neuropathy of the right foot is productive of any more than moderate impairment. Accordingly, under all diagnostic codes potentially pertinent to his disability there is no basis for a rating in excess of 20 percent for the Veteran's diabetic neuropathy of the right foot. Extraschedular Consideration As to whether the record raises the matter of referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board notes that the Veteran is currently unemployed. Thus, 38 C.F.R. § 3.321(b)(1) would potentially apply to the Veteran's case. Barringer v. Peake, 22 Vet. App. 242 (2008). Specifically, a review of the record shows that the Veteran last worked in April 1999 as a result of his several disabilities to include blindness. There is no evidence that the Veteran quit working due to his service-connected diabetic neuropathy of the right foot alone. The Board finds that the rating criteria considered in this case regarding these issues reasonably describe the Veteran's disability level and symptomatology. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected diabetic neuropathy of the right foot is adequate and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "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." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (fed. Cir. 2009). Complete notice was sent in January 2003, February 2004, June 2005, March 2006, and October 2008 letters and the claim was readjudicated in a March 2009 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Board notes that nerve studies ordered during the August 2003 VA examination have not been associated with the claims file but finds that subsequent nerve studies have been associated with the claims file and considered above. Therefore, there is no prejudice in proceeding with the adjudication of this claim. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A disability rating greater than 20 percent for service- connected diabetic neuropathy of the right foot is denied. REMAND The Veteran has been diagnosed with PTSD but there is no indication that he saw combat. As such, verification of an in-service stressor is essential to grant entitlement to the benefit sought on appeal. A review of the record is negative for a description of in-service stressors despite a January 2004 letter requesting that the Veteran provide such information. The Board notes, however, that the Veteran is legally blind and may not have been able to read the January 2004 letter. The Board also notes that in an October 2009 Informal Hearing Presentation the Veteran's accredited representative indicated that the Veteran has provided "clear, consistent testimony regarding the stressors." Therefore, the Board finds that there may be a stressor statement from the Veteran that has not yet been associated with the claims file. The Board also finds that regardless whether there is an outstanding statement from the Veteran regarding his claimed in-service stressors he should be notified once again of the need to submit this information in a notice letter with large print. Accordingly, the case is REMANDED for the following action: 1. The RO should associate any missing statement regarding the Veteran's claimed stressors with the claims file. 2. Thereafter, the RO should request that the Veteran provide details regarding stressful situations he experienced during his military service (i.e., in-service stressors). This notice letter should be in large print. A copy of the letter should also be sent to the Veteran's representative. 3. After an appropriate time for response, readjudicate the Veteran's application for entitlement to service connection for PTSD. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs