Citation Nr: 1007130 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-15 237 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetic retinopathy. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to service connection diabetes mellitus Type II. 3. Entitlement to an increased rating for residuals of prostate cancer, currently evaluated as 40 percent disabling. 4. 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 Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served for twenty years on active duty from October 1951 to October 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision that, in pertinent part, denied service connection for diabetic retinopathy and for peripheral neuropathy of the upper extremities; and denied increased disability ratings in excess of 20 percent for residuals of prostate cancer, and in excess of 10 percent for peripheral neuropathy of the left lower extremity. The Veteran timely appealed. In July 2007, the RO increased the disability evaluation to 40 percent for residuals of prostate cancer, effective April 10, 2007. Because higher evaluations are available for residuals of prostate cancer, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2009, the Veteran withdrew his prior request for a Board hearing, in writing. FINDINGS OF FACT 1. A clear preponderance of the evidence weighs against a finding that the Veteran currently has diabetic retinopathy. 2. A clear preponderance of the evidence weighs against a finding that peripheral neuropathy of the upper extremities was present during active service, within the first post service year or is otherwise related to service or a service- connected disability. 3. For the period prior to April 10, 2007, the Veteran's residuals of prostate cancer have been manifested by a voiding dysfunction with urine leakage that required the wearing of absorbent materials which must be changed less than two times per day; no obstructed voiding or renal dysfunction, and no local recurrence or metastasis of malignant neoplasm of the genitourinary system are demonstrated. 4. For the period from April 10, 2007, the Veteran's residuals of prostate cancer have been manifested by a voiding dysfunction with urine leakage that required the wearing of absorbent materials which must be changed two to four times per day; no obstructed voiding or renal dysfunction, and no local recurrence or metastasis of malignant neoplasm of the genitourinary system are demonstrated. 5. The Veteran's peripheral neuropathy of the left lower extremity is manifested by, at most, mild incomplete paralysis of the sciatic nerve or the common peroneal nerve; moderate incomplete paralysis of the sciatic nerve or the common peroneal nerve has not been demonstrated. CONCLUSIONS OF LAW 1. Diabetic retinopathy was not incurred or aggravated in service; and is not proximately due to, or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 2. Peripheral neuropathy of the upper extremities was not incurred or aggravated in service; and is not proximately due to, or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2009). 3. The criteria for a disability rating in excess of 20 percent for residuals of prostate cancer, for the period prior to April 10, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2009). 4. The criteria for a disability rating in excess of 40 percent for residuals of prostate cancer, for the period from April 10, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2009). 5. The criteria for a disability rating in excess of 10 percent for the Veteran's peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Codes 8520, 8521, 8621, 8721 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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, 3.326(a) (2009). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A recent decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, Nos. 2008-7150, 2008-7115 (Fed. Cir. Sept. 4, 2009). Through January 2004 and March 2007 letters, the RO notified the Veteran of elements of service connection, the evidence needed to establish each element, and evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the March 2007 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Where the Veteran served continuously for ninety (90) or more days during a period of war, and if an organic disease of the central nervous system became manifest to a degree of 10 percent or more within one year from the date of the Veteran's termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The Veteran contends that service connection for diabetic retinopathy and for peripheral neuropathy of the upper extremities is warranted on the basis that each of his disabilities is proximately due to or a result of his service-connected diabetes mellitus Type II. Service connection is in effect for diabetes mellitus with impotence, evaluated as 20 percent disabling. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2009); Allen v. Brown, 7 Vet. App. 439 (1995). During the pendency of this appeal, there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Since this regulation change incorporates the provisions of Allen, case law which had already been followed, there is no prejudice to the Veteran applying the new or old regulation. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A. Diabetic Retinopathy Service treatment records contain no complaints or findings of diabetic retinopathy. The post-service treatment records include the report of a June 2001 VA examination, reflecting a diagnosis of diabetes mellitus for three years. The examiner found no diabetic retinopathic changes in the retina. Private treatment records reflect an occular history and examination findings of cataracts and suspected glaucoma in April 2005. Following another VA eye examination and review of the Veteran's claims file in April 2007, the examiner concluded that there was no evidence of diabetic retinopathy. The Board notes that service connection has been established for open angle glaucoma and for cataracts, status-post bilateral surgery, effective December 2003. The April 2007 VA examiner reviewed the entire claims file and completed a comprehensive eye examination. It was concluded that there was no current diabetic retinopathy. The VA opinion is factually accurate, fully articulated, and contains sound reasoning. Therefore, the VA opinion is afforded significant probative value. There is no contrary opinion of record. The Board finds a clear preponderance of the evidence is against a finding that the Veteran currently has diabetic retinopathy. Therefore, there is no basis for a grant of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). B. Peripheral Neuropathy of the Upper Extremities Service treatment records contain no complaints or findings of peripheral neuropathy of the upper extremities. The post-service treatment records include findings of degenerative changes and discogenic disease of the cervical spine in December 1995. At that time the Veteran gave a history of neck pain with radicular pain to the right arm. Nerve conduction studies, dated in March 2003, revealed electrical evidence for an axon loss cervical radiculopathy affecting the C8 nerve root, predominantly on the left. Clinical records also suggest that the Veteran's symptomatic radiculopathy could be due to his degenerative disc disease. The Veteran underwent a VA peripheral nerves examination in April 2007, and the examiner reviewed the Veteran's claims file. Of significance, the examiner noted the electromyogram findings of cervical radiculopathy of the left upper extremity involving at least C8 and probably C7 as well. There was no evidence of small fiber injury consistent with diabetes mellitus, and motor and sensory function in the ulnar and median nerves was normal. Current examination revealed intact deep tendon reflexes 2+ biceps and 1+ triceps, brachioradialis, bilaterally; and slightly decreased motor function in terms of grasp and pinch, but normal function of the intrinsic musculature of the hand. There was normal vibration sense and normal position sense in both hands. Sensation was intact to pinprick. The examiner concluded that the Veteran's upper extremity sensory and motor findings were consistent with radiculopathy as confirmed by electromyogram, with no objective findings typical of small fiber neuropathy of diabetes mellitus Type II. Again, there was no evidence of peripheral neuropathy of the type consistent with diabetes mellitus Type II. In this case, the April 2007 VA examiner reviewed the entire claims file and completed a comprehensive medical examination. It was concluded that peripheral neuropathy of the upper extremities was not due to service or service- connected diabetes mellitus Type II. The examiner cited to electromyogram findings of cervical radiculopathy to explain the Veteran's symptoms, and found no causal link to service. The VA opinion is factually accurate, fully articulated, and contains sound reasoning. Therefore, the VA opinion is afforded significant probative value. There is no contrary opinion of record. A presumption of service connection based on Agent Orange exposure is available for those veterans who served in Vietnam during the Vietnam era provided that they are also diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). In this case, the Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal and the grant of service connection for diabetes mellitus was based on his exposure to Agent Orange. However, the evidence does not show that the veteran was diagnosed with a neurologic disease listed in 38 C.F.R. § 3.309(e). Acute or subacute peripheral neuropathy has not been shown. (Acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within months of exposure to an herbicide agent and resolves within two years. See 38 C.F.R. § 3.309(e) Note 2.) The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for other disabilities, including other peripheral neuropathy. It was indicated that the National Academy of Sciences, after reviewing pertinent studies, did not feel that the evidence warranted altering its prior determination that there was inadequate or insufficient evidence of an association between exposure to herbicide agents and the subsequent development of other disability. See Notice, 72 Fed. Reg. 32395-32407 (2007). Furthermore, the Veteran has not presented any competent evidence suggesting a relationship between his peripheral neuropathy and Agent Orange exposure. The Board finds a clear preponderance of the evidence is against a finding that the Veteran's peripheral neuropathy of the upper extremities is proximately due to or the result of a service-connected disability. The evidence weighs in favor of the conclusions made by the April 2007 VA examiner. C. Conclusions The Veteran has not claimed that either the diabetic retinopathy or the peripheral neuropathy of the upper extremities was present in service and continued to the present, but he has claimed that each disability is attributable to his service-connected diabetes mellitus Type II. While a layperson is certainly capable of providing evidence of symptomatology, a layperson is generally not capable of opining on matters requiring medical knowledge or expertise, such as the condition causing the symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) and Stadin v. Brown, 8 Vet. App. 280, 284 (1995). Lastly, there were no manifestations of pertinent disability in service and the competent evidence fails to establish a continuity of symptomotology of diabetic retinopathy or of peripheral neuropathy of the upper extremities following military service. Nor is there competent evidence establishing the onset of either disability in service. Because the competent evidence does not link any current diabetic retinopathy or peripheral neuropathy of the upper extremities to service or to a service-connected disability, the weight of the evidence is against each of the claims. III. Increased Disability Evaluations Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2009). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. Residuals of Prostate Cancer Service connection has been established for residuals of prostate cancer, effective February 22, 2001. A 20 percent disability rating was assigned under 38 C.F.R. § 4.115b, Diagnostic Code 7528, pertaining to malignant neoplasms of the genitourinary system. Effective April 10, 2007, the RO assigned a 40 percent disability rating for residuals of prostate cancer under 38 C.F.R. § 4.115b, Diagnostic Code 7527, pertaining to post- operative residuals of prostate gland injuries and voiding dysfunction. Procedural Safeguards Residuals of prostate cancer are evaluated initially as "malignant neoplasm of the genitourinary system" under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, the Veteran is to receive a 100 percent rating following surgery, and thereafter, is to be rated on the residuals as voiding dysfunction or renal dysfunction. 38 C.F.R. § 4.115b (2009). A note under Diagnostic Code 7528 states that a 100 percent rating shall continue with a mandatory VA examination six months following the cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedure. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (2009). In this case, the Veteran underwent treatment in 2000 for six to eight months, to irradiate prostate cancer. The evidence reflects that the Veteran had no residuals of radiation therapy, and no evidence of recurrence or metastasis. Moreover, the Veteran first filed his claim for service connection for residuals of prostate cancer in February 2001 after treatment. Because the claim was filed more than one year following the Veteran's separation from service, as a matter of law, the effective date of service connection and award of compensation can be no earlier than the date of receipt of the claim. 38 C.F.R. § 3.400(b). Rating Criteria Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where there has been no local reoccurrence or metastasis, residuals of malignant neoplasm of the genitourinary system are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. Voiding dysfunction is to be evaluated as urine leakage, frequency of urination, or obstructed voiding. For urinary leakage, the rating schedule provides a 20 percent rating for disability requiring the wearing of absorbent materials which must be changed less than two times per day. Where the disability requires the wearing of absorbent materials which must be changed two-to-four times a day, a 40 percent rating is warranted. A 60 percent rating is warranted for disability requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. For urinary frequency, the rating schedule provides a 10 percent rating for a daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating applies for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A maximum 40 percent rating applies for a daytime voiding interval of less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, the rating schedule indicates that a 30 percent rating applies if the Veteran has urinary retention requiring intermittent or continuous catheterization. A 10 percent rating applies if there is marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: post-void residuals greater than 150 cubic centimeters (cc), markedly diminished peak flow rates less than 10 cc per second by uroflowmetry, recurrent urinary tract infection secondary to obstruction, or stricture disease requiring dilatation every two to three months. A noncompensable rating applies if the disease is manifested by obstructive symptomatology, with or without stricture disease, requiring dilatation once or twice a year. 38 C.F.R. § 4.115a. In this case, there is no evidence of renal dysfunction, and the predominant area of a voiding dysfunction appears to be that of urine leakage. The report of a June 2001 VA examination reflects no signs of recurrence or metastasis of carcinoma. The Veteran reported no incontinence, urgency, urine infections, or obstruction. Laboratory testing revealed the prostate-specific antigen was 0.6. During the August 2003 VA examination, the Veteran reported that he did not require hormonal replacement, and that he had not had recurrence following his tumor. At times he wore an occasional pad when away from home and was afraid that he might not be able to get to a toilet when he had to void. The Veteran reportedly had to go quickly when he needed to void, or would have an accident. He reported that his accidents were rare, and less than one per week. He neither wore a pad at night, nor changed one during the day. The examiner found no evidence to suggest residual prostate or prostate tumor. The examiner diagnosed cancer of the prostate, Agent Orange mediated, status-post open beam radiation with persisting urinary urgency, rare accident, and mild-to-moderate erectile dysfunction. Laboratory testing revealed the prostate-specific antigen was 0.4. During a February 2004 VA examination, the Veteran reported having urinary urgency. He occasionally wore a pad if going out, because he was concerned about leaking. He had nocturia two times nightly, and frequency up to three-to-four times a day. In March 2007, laboratory testing revealed the prostate- specific antigen was 0.7. During an April 10, 2007 VA examination, the Veteran reported urinary frequency with voiding intervals of every one-to-two hours during the daytime and two-to-three episodes of nocturia. He denied dysuria, but did report hesitancy and urgency. The Veteran reported both urge and stress incontinence, which required protective garment and changing two-to-three times daily. He reportedly suffered complete loss of erectile function since diagnosis of diabetes mellitus complicated by effects of radiation therapy. The Veteran did not require hospitalization for urinary tract disease in the past 12 months; and did not require catheterization, dilatation, or drainage procedures. He underwent yearly prostate-specific antigen testing. The diagnosis was prostate cancer, in remission with no evidence of active disease. In this case, prior to the April 10, 2007 VA examination, the Veteran's residuals of prostate cancer have been manifested primarily by a voiding dysfunction with occasional urine leakage that required the wearing of absorbent materials which must be changed less than two times per day. The symptoms did not meet the criteria for a disability rating in excess of 20 percent prior to April 10, 2007. Urine leakage that required the wearing of absorbent materials which must be changed two-to-four times per day is not shown. Thus, the weight of the evidence is against the grant of a disability rating in excess of 20 percent for the applicable period in this appeal prior to April 10, 2007. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2009). As of the April 10, 2007 VA examination, the evidence reflects that residuals of prostate cancer have been manifested by complaints of voiding dysfunction with urine leakage that require the wearing of absorbent materials which must be changed two-to-four times per day. These symptoms meet the criteria for a 40 percent disability rating under 38 C.F.R. § 4.115b, Diagnostic Code 7528, on the basis of voiding dysfunction. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, there is nothing in the record reflecting a voiding dysfunction that requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Nor is there evidence of renal dysfunction. Hence, a disability rating in excess of 40 percent is not warranted. The Veteran has also reported that he has erectile dysfunction and the record reflects that he receives special monthly compensation for loss of use of a creative organ. However, his genitalia were normal on VA examination in August 2003. The record does not show and the Veteran does not claim that he has penile deformity and a separate evaluation for erectile dysfunction is not warranted. See 38 C.F.R. § 4.115b Diagnostic Code 7522 (2009). B. Peripheral Neuropathy of the Left Lower Extremity Service connection has been established for peripheral neuropathy of the left lower extremity. The RO assigned a 10 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8621, pertaining to neuritis of the external popliteal nerve (common peroneal). A 10 percent evaluation is warranted for mild incomplete paralysis of the common peroneal nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the common peroneal nerve of the lower extremity. A 30 percent evaluation is warranted for severe incomplete paralysis of the common peroneal nerve of the lower extremity. A 40 percent evaluation is warranted for complete paralysis of the common peroneal nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the common peroneal nerve is indicated when there is foot drop and slight droop of 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 entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8621, 8721. During a February 2004 VA examination, the Veteran reported some tingling in his feet. Examination revealed that sensation was slightly decreased on the bottom of his feet. The diagnosis was peripheral neuropathy. During an April 2007 VA examination, the Veteran reported having increased symptoms of peripheral neuropathy of the left lower extremity, in terms of frequency of occurrence. He reported a constant burning pain with intermittent numbness and cramps in both feet, left greater than right. Examination of the lower extremities showed intact reflexes with 2+ knee jerk and ankle jerk reflexes. There was diminished sensation in a stocking distribution from the ankles distally to light touch, and mildly decreased vibration sense. Sensation was intact to pinprick over the dorsum of the foot. There was normal function of the intrinsic musculature of the feet with no evidence of wasting. The examiner diagnosed neuritis, bilateral sciatic nerves, mild. In the absence of motor findings, the examiner opined that the neuropathy symptoms were most consistent with mild neuropathy. In this case, the evidence of record does not reveal that an increased disability rating for peripheral neuropathy of the left lower extremity is warranted under Diagnostic Code 8520 (sciatic nerve) or Diagnostic Code 8521 (common peroneal nerve). There is no evidence of moderate incomplete paralysis of any nerve of the lower extremity. Nor have there been reports of loss of reflexes or muscle atrophy for the left lower extremity. 38 C.F.R. §§ 4.123, 4.124 (2009). Significant functional loss due to pain has not been demonstrated. Thus, the weight of the evidence is against the grant of an increased disability rating for peripheral neuropathy of the left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8621, 8721. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2009). C. Extraschedular Consideration There is no showing that the Veteran's service-connected disabilities have resulted in so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the Veteran's disabilities have not been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The Veteran is not currently working, and there is no evidence of recent hospitalizations. In the absence of evidence of any of the factors outlined above, the criteria for referral for consideration of an extraschedular rating have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for diabetic retinopathy is denied. Service connection for peripheral neuropathy of the upper extremities is denied. For the period prior to April 10, 2007, a disability evaluation in excess of 20 percent for residuals of prostate cancer is denied. For the period from April 10, 2007, a disability evaluation in excess of 40 percent for residuals of prostate cancer is denied. An increased rating for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs