Citation Nr: 1007255 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-27 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to an increased rating for diabetes mellitus with noncompensable erectile dysfunction, diabetic retinopathy, and peripheral vascular disease, currently rated as 20 percent disabling. 3. Entitlement to increased ratings higher than 10 percent each for peripheral neuropathy of the right and left lower extremities secondary to diabetes mellitus, for the period prior to April 20, 2006, and higher than 20 percent since April 20, 2006. 4. Entitlement to an increased rating for peripheral neuropathy of the right and left upper extremities, secondary to diabetes mellitus, each currently rated as 10 percent disabling. ATTORNEY FOR THE BOARD R. Patner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from October 2005 and March 2006 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that respectively denied service connection for hypertension, to include as secondary to diabetes mellitus; and denied an increased rating for diabetes mellitus. In July 2008, the Board remanded the claims for additional development. FINDINGS OF FACT 1. The Veteran's hypertension first manifested many years after his separation from service and is not related to his service or to any aspect thereof, and was not caused or aggravated by his service-connected diabetes mellitus. 2. For the period under appeal, the Veteran's diabetes mellitus was manifested by the need for insulin, hypoglycemic agents, and dietary restrictions, but his physical activity was not clinically regulated. 3. For the period under appeal, the Veteran's erectile dysfunction has been manifested by impotence, but his erectile dysfunction is not manifested by penile deformity. 4. For the period under appeal, the Veteran's diabetic retinopathy has been manifested by a corrected visual acuity of 20/20, bilaterally, with no incapacitating episodes. 5. For the period under appeal, the Veteran's peripheral vascular disease has not been manifested by claudication on walking more than 100 yards, peripheral pulses were not diminished, and ankle/brachial index was greater than 1.0. 6. For the period under appeal, the Veteran's peripheral neuropathy of the right and left lower extremities were characterized by symptoms that were moderate. 7. For the period under appeal, the Veteran's peripheral neuropathy of the right and left upper extremities have been characterized by symptoms that are mild. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by the Veteran's active service, and is not proximately due to, the result of, or aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2009). 2. The criteria for a rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2009). 3. The criteria for a separate compensable rating for erectile dysfunction are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2009); 38 C.F.R. § 4.119, DC 7913 (2009). 4. The criteria for a separate compensable rating for diabetic retinopathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.84, Diagnostic Code 6006; 38 C.F.R. § 4.119, DC 7913 (2009). 5. The criteria for a separate compensable rating for peripheral vascular disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7114; 38 C.F.R. § 4.119, DC 7913 (2009). 6. Prior to April 20, 2006, the criteria for 20 percent ratings, but not higher, for peripheral neuropathy of the right and left lower extremities have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.123a, DC 8520 (2009). 7. For the period since April 20, 2006, the criteria for a rating in excess of 20 percent for peripheral neuropathy of the right and left lower extremities have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.123a, DC 8520 (2009). 8. For the period under appeal, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the right and left upper extremities have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, DCs 8515, 8615, 8715 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for some disorders, including hypertension, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents such as Agent Orange. In the case of such a veteran, service connection for listed diseases will be rebuttably presumed if they are manifest to a compensable degree within specified periods. However, hypertension is not on of the listed diseases. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2009). The presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2009). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.303, 3.310. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Note (1) (2009). The Veteran contends that his hypertension developed as a result of his service in Vietnam. Alternatively, he contends that his hypertension developed as a result of the service- connected diabetes mellitus with which he was formally diagnosed in 1992. The Veteran's service medical records are negative for any findings of elevated blood pressure or diagnosis of hypertension. The Board thus finds that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's claim for service connection of his hypertension. 38 C.F.R. § 3.303(b). On May 2005 VA examination, the Veteran reported that he had been diagnosed with hypertension and diabetes mellitus concurrently in 1992. At that time, he was experiencing blurred vision, polyuria, and polydispsia. He had been taking antihypertensive medication ever since his diagnosis. After physically examining the Veteran, including diagnostic and clinical testing, the examiner diagnosed the Veteran with arterial hypertension with mild left ventricular hypertrophy at fifty-five percent. The examiner concluded that the Veteran's hypertension was not related to or aggravated by his diabetes mellitus. In so concluding, the examiner explained that the Veteran had first been diagnosed with hypertension over ten years before he first tested positive for proteinuria in 2004. The amount of elapsed time between the two diagnoses made it unlikely that his hypertension was related to or aggravated by his diabetes mellitus. Treatment records dated to August 2008 show continued treatment for hypertension. At no time, however, did any treating physician relate the Veteran's hypertension to his active service or his service-connected diabetes mellitus. The evidence reflects that the first clinical diagnosis of hypertension of record is dated in 1992, approximately 22 years after his separation from service. As there is no evidence of hypertension dated within one year of his separation from service, the Veteran is not entitled to service connection for hypertension on a presumptive basis. Additionally, in view of the lengthy period without treatment or complaints of the condition, there is no evidence of a continuity of treatment, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no probative evidence establishing a medical nexus between military service and the Veteran's hypertension. Thus, service connection on a direct basis is not warranted. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Nor is service connection on a secondary basis warranted, as on VA examination, the examiner determined that there was no relationship between the Veteran's hypertension and his service-connected diabetes mellitus. Additionally, the examiner determined that the Veteran's diabetes mellitus had not aggravated the Veteran's hypertension, as the time elapsed between the diagnosis of hypertension and the first sign of proteinuria was too great. There is no competent contrary opinion of record. Accordingly, service connection for hypertension is not warranted. The Board has considered the Veteran's assertions that his hypertension is related to his period of active service, including to his service-connected diabetes mellitus. To the extent that the Veteran ascribes his current disorder to a service-connected disability, however, his opinion is not probative. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (layperson is generally not competent to opine on matter requiring knowledge of medical principles); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). In sum, the weight of the credible evidence demonstrates that the Veteran's hypertension first manifested many years after service and is not related to his active service, to any incident therein, or to any service-connected disability. As the preponderance of the evidence is against the Veteran's claim for service connection for hypertension, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Diabetes Mellitus The Veteran's diabetes mellitus has been rated 20 percent disabling under DC 7913. Diagnostic Code 7913 provides for a 20 percent rating where the diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). VA treatment records reflect that on October 2005 occupational therapy assessment, it was determined that the Veteran would need to modify certain daily activities due to his neuropathy and his low back discongenic disease, including dressing his lower half, bathing, toileting, and walking. He was prescribed a bed-chair, and special equipment to transfer from the toilet and from the bath for his safety. On February 2006 VA diabetes examination, the Veteran reported that he followed a restricted diet. He denied any restriction of his physical activities related to his diabetes. He took oral hypoglycemic medication as well as insulin to control his diabetes. Neurologic examination revealed decreased sensory function with monofilament in both the upper and lower extremities. Eye examination was negative for retinopathy. The diagnosis was diabetes mellitus, arterial hypertension, diabetic neuropathy, and proteinuria. VA treatment records reflect that in February 2006, the Veteran was instructed to continue to follow a low fat diet. In March 2006, the Veteran was instructed to stay on an 1800 calorie per day diabetic diet to promote gradual weight loss. A September 2006 treatment plan reflects continued instruction to focus on weight loss, diet, and exercise. A January 2008 plan similarly instructs the Veteran to restart his diet and to exercise. In August 2008, the Veteran underwent an obesity and weight loss consultation. At that time, he reported having pain in the groin in belly area that was related to a hernia, and increased physical activity was not suggested prior to further evaluation. With regard to his diabetes, however, physical activity was not restricted. Here, the Veteran has met two of the three criteria for an increased rating for diabetes mellitus for the entire appeal period. However, the threshold requirement for a 40 percent rating is regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360 (2007). In addressing the third criterion for a higher rating, there is no evidence at any time in this case that the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities due to his diabetes mellitus. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining regulation of activities as used by VA in DC 7913). Treatment records dated as recently as August 2008 show that the Veteran had been advised to exercise in effort to control his diabetes mellitus. In order to meet a higher rating of 40 percent, the Veteran must have been told that he should avoid any strenuous occupational or recreational activities. 38 C.F.R. § 4.119, DC 7913. Although the Veteran has contended and the evidence shows that his activities of daily living have been restricted, in that he must use assistive devices to dress the lower half of his body, and he uses assistive devices to toilet and bathe himself, these measures differ from those contemplated for the next higher criteria in the rating schedule. Specifically, the assistive measures were prescribed due to the Veteran's painful peripheral neuropathy and for his low back condition, rather than due to the severity of his diabetes mellitus. Importantly, the devices assist him in his daily routine activities, but do not equate to a limitation placed upon strenuous occupational or recreational activities, such as avoiding walking or running, as is contemplated by the next higher rating. The fact that the Veteran has been advised that he should exercise repeatedly in order to lose weight, in the absence of specified medical guidelines for that exercise, does not meet the criterion requiring regulation of activity so as to warrant a 40 percent evaluation. While the Veteran here has been prescribed a restricted diet and hypoglycemic medication and insulin in effort to control his diabetes, he has not been prescribed limited physical activity or advised to avoid recreational activities. The Veteran therefore does not meet the criteria for a higher rating of 40 percent. 38 C.F.R. § 4.119, DC 7913. The Veteran, however, additionally contends that he is entitled to a separate compensable ratings for diabetic retinopathy, peripheral vascular disease, and erectile dysfunction. With regard to his diabetic retinopathy, the Veteran is currently rated under Diagnostic Code 6079, which pertains to impairment of visual acuity. DC 6006 is also pertinent to the analysis, and pertains to retinitis. The Rating Schedule does not contain a specific diagnostic code for diabetic retinopathy. However, where an unlisted condition is encountered it is permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2009). In this case, the Board finds that 38 C.F.R. § 4.84, DC 6006, which pertains to retinitis, is the most closely analogous diagnostic code. Diagnostic Codes 6000 through 6009, in chronic form, are to be rated from 10 percent to 100 percent disabling for impairment of visual acuity or loss of field of vision, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. A minimum rating of 10 percent is to be assigned during active pathology. 38 C.F.R. § 4.84, DCs 6000-6009. A compensable rating for loss of visual acuity requires that corrected vision be 20/40 or worse in one eye and 20/50 or worse in the other. 38 C.F.R. § 4.84(a), Diagnostic Codes 6078, 6079. The ratings increase in 10 percent increments according to the levels of vision impairment with the greatest award of 100 percent assignable for visual acuity of 5/200 in each eye. 38 C.F.R. § 4.84(a), Diagnostic Codes 6063-6078 (2008). During the pendency of the appeal, the criteria for rating eye disabilities changed. However, because the Veteran filed his claim prior to December 10, 2008, the appeal will be considered under the old criteria. 73 Fed. Reg. 66543 (Nov. 10, 2008). On December 2004 eye examination, the Veteran reported a tearing and burning sensation for the previous year that improved when he blinked. There was no ocular pain. Corrected visual acuity was 20/20, bilaterally. There was no visual field deficit. The diagnosis was refractive error, mild dry eyes, incipient senile cataracts, floaters, and mild nonproliferative diabetic retinopathy. The Veteran's cataracts were determined not to be related to his diabetes mellitus. On February 2006 VA diabetes examination, however, eye examination was negative for retinopathy and no eye condition related to diabetes was diagnosed. On review of the determinative findings of record, the evidence continues to support the assignment of a noncompensable rating for diabetic retinopathy. On examination in December 2004, the Veteran had corrected visual acuity of 20/20 in each eye. On examination in February 2006, diabetic retinopathy was not found. The remainder of the VA treatment records do not evidence treatment for eye problems related to the Veteran's diabetes, including any complaints of pain, or record or rest requirements or episodic incapacity. Accordingly, the Board finds that he is not entitled to an increased initial rating based on visual acuity, pain, rest requirements, or episodic incapacity. While a minimum rating of 10 percent is to be assigned during active pathology for some conditions, the evidence does not show that the Veteran has any active condition listed in DCs 6000 through 6009, that would warrant the assignment of a 10 percent rating. 38 C.F.R. § 4.84, DCs 6000-6009 (2008). Accordingly, a separate compensable rating for diabetic retinopathy is not warranted. With regard to the Veteran's erectile dysfunction, this condition is rated under DC 7522, which pertains to deformity of the penis with loss of erectile power. While the Veteran has not specifically been diagnosed with that disability, it is permissible to rate a diagnosed condition that does not match any of the diagnostic codes contained in the rating schedule under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2009). Diagnostic Code 7522 does address loss of erectile power, which is precisely the symptomatology described by the Veteran. Moreover, that is the only diagnostic code that specifically addresses erectile function. The Board can identify no more appropriate diagnostic code and the Veteran has not identified one. Butts v. Brown, 5 Vet. App. 532 (1993). Accordingly, the Board will proceed with an analysis of the Veteran's disability under that diagnostic code. Diagnostic Code 7522 provides for a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115(b), DC 7522. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2009). Therefore, where both loss of erectile power and deformity are not demonstrated, a 0 percent rating will be assigned. In this case, the Veteran has been diagnosed with loss of erectile power (erectile dysfunction). However, because no penile deformity has been shown, the Board finds that the Veteran is not entitled to a compensable rating. 38 C.F.R. § 4.20 (2009). On December 2004 VA genitourinary examination, the Veteran reported that he had experienced erectile dysfunction for the previous two and a half years. He stated that neither vaginal penetration nor ejaculation were possible. Viagra had not helped the condition. Physical examination revealed no deformities of the penis. The diagnosis was erectile dysfunction secondary to diabetes mellitus. Although the Veteran has stated that he had been unable to maintain an erection despite trying Viagra, the medical evidence does not reflect a diagnosis of a penile deformity. Accordingly, the Veteran is not entitled to a separate compensable rating for erectile dysfunction. In addition, the Board also observes that the Veteran has been granted special monthly compensation based on the loss of use of a creative organ. With regard to his peripheral vascular disease, the Veteran has been rated under 7199-7114. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2009). DC 7199 refers to an unlisted disability of the heart. DC 7114 refers to arteriosclerosis obliterans. Under that Diagnostic Code, claudication on walking more than 100 years, and diminished peripheral pulses or ankle/brachial index of .9 or less warrants a 20 percent rating. Claudication between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less warrant a 40 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7114. A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. Id. A 100 percent rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. Id. The ankle/brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Note 1. On July 2007 VA vascular examination, the Veteran reported experiencing pain in the lower leg muscles after walking for more than fifteen minutes. Physical examination revealed normal pulses in the lower extremities, without any ulcers, discoloration, edema, or trophic changes. There were no varicose veins or edema. There was no evidence of claudication or diminished peripheral pulses. The diagnosis was peripheral vascular disease, arterial, which was concluded to be a complication of the Veteran's diabetes. Therefore, although the Veteran has been diagnosed with peripheral vascular disease, he has not been shown to suffer from claudication, diminished peripheral pulses, or an ankle/brachial index of less than 1.0, and a separate compensable rating is not warranted. The Board notes that on July 2007 VA skin examination, the Veteran's tinia pedia and tinia unguim were determined to not be related to his diabetes mellitus. The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2009). In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that 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). In this case, the Board finds that the Schedule is not inadequate. The Schedule provides for higher ratings for the Veteran's diabetes mellitus and noncompensable manifestations, but findings supporting a compensable rating have not been documented. In addition, it has not been shown that the service-connected diabetes mellitus and noncompensable manifestations has required frequent periods of hospitalization or has produced marked interference with the Veteran's employment. Therefore, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted. As the Board has determined that the Veteran is not entitled to a separate compensable rating for diabetic retinopathy, erectile dysfunction, or peripheral vascular disease, nor does he meet the criteria for a 40 percent rating for diabetes mellitus, he remains entitled to no more than a 20 percent disability rating for his diabetes mellitus with diabetic retinopathy, erectile dysfunction, and peripheral vascular disease for the period under appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As the preponderance of the evidence is against the claim for increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Peripheral Neuropathy of the Upper and Lower Extremities The Veteran's service-connected peripheral neuropathy of the right and left lower extremities has been rated as 10 percent disabling for each side up to April 19, 2006, and as 20 percent disabling for each side since April 20, 2006, under Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. Under Diagnostic Codes 8520, 8620, and 8720, disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Diagnostic Code 8620 and 8720 address the criteria for evaluating neuritis and neuralgia of the median nerve, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, DC's 8520, 8620, 8720 (2009). The Veteran's diabetic peripheral neuropathy of the right and left upper extremities have each been rated 10 percent disabling under DC 8515, which pertains to paralysis of the median nerve. 38 C.F.R. § 4.124a, DC 8515. The evidence in this case indicates that the Veteran is right-handed. As the Veteran is service-connected for neuropathy in both upper extremities, for the right arm, the Board will apply the criteria applicable to the major extremity, and for the left arm, the Board will apply the criteria applicable to the minor extremity. 38 C.F.R. § 4.69. The criteria for evaluating the severity or impairment of the median nerve is set forth under Diagnostic Codes 8515, 8615, and 8715. Under DC 8515, a 10 percent rating is warranted for mild incomplete paralysis of the median nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the minor extremity. A 30 percent rating is warranted for moderate incomplete paralysis of the median nerve in the major extremity. A 40 percent rating requires severe incomplete paralysis of the median nerve in the minor extremity, and a 50 percent rating is warranted for severe incomplete paralysis of the median nerve in the major extremity. 38 C.F.R. § 4.124a, DC 8515. Diagnostic Codes 8615 and 8715 address the criteria for evaluating paralysis and neuralgia of the median nerve, respectively. The criteria are consistent with the criteria for evaluating degrees of neuritis as set forth above. 38 C.F.R. § 4.124a, DCs 8515, 8615, 8715 (2009). On November 2004 VA neurological examination, the Veteran reported that he had been experiencing numbness in his hands and feet for three years. The symptoms had gradually progressed since that time. He denied any associated weakness or limitation of movement. There was also a tingling sensation downward from his legs and cramping in his hands. The symptoms were worse at night or when it was cold. There was partial improvement with movement or the shaking of extremities. He also took medication, which provided partial improvement for his leg parasthesias. Physical examination revealed adequate tone in all extremities. Muscle strength was 5/5 in all extremities. Sensation to pinprick and light touch was decreased in the lower extremities and was adequate in the upper extremities. There was decreased vibration sense in the lower extremities, more in the feet compared to the knees. The findings demonstrated multiple peripheral nerve involvement in the legs without associated atrophy. There was no weakness or sensory deficit in the upper extremities. The examiner stated that the neurological testing in the lower extremities did not reveal weakness, though there was sensory evidence of deficits, suggesting early involvement of sensory fibers in the lower extremities. The diagnosis was peripheral neuropathy of the lower extremities, as evidenced by early sensory involvement. VA treatment records reflect that in August 2005, the Veteran complained of neuropathic pain in the lower extremities that had not resolved with medication. Sensory examination revealed no gross deficits. The Veteran's medication was adjusted and he was instructed to complete physical therapy exercises in order to manage his pain and improve his strength. He was instructed not to lift heavy objects and to avoid painful ranges of motion. Neurologic examination in October 2005 revealed functional range of motion in the upper extremities and limited range of motion in the lower extremities. Functional strength and hand grip was normal in the upper extremities, and functional strength was diminished in the lower extremities to 3/5. Coordination was intact. In March 2006, he reported persistent pain in his upper and lower extremities that interfered with his ability to walk and with his daily activities. He reported a poor tolerance to physical therapy. In December 2007, he complained of severe pain in his lower extremities. The pain made it difficult for him to sleep and go about his daily activities. He was counseled on the proper use of this medication to relieve the condition. On follow-up examination, neurological examination revealed normal strength and tone. Sensory examination was grossly intact to soft touch and pinprick testing. In March 2008, the Veteran reported numbness in his hands and a current-like sensation that ran up and down his legs On July 2007 VA neurological examination, the Veteran described pain and numbness in both his upper and lower extremities which had become progressively worse. He also had cramping in his hands. Physical examination revealed normal muscle strength in both the upper and lower extremities. Sensory examination was decreased distally in all extremities. Reflex examination was normal. There was no muscle atrophy, abnormal muscle bulk or tone. The diagnosis was diabetic neuropathy, mild to moderate, in both the upper and lower extremities. There was no paralysis, but neuritis and neuralgia was present. In this case, with regard to the lower extremities, the Board finds that throughout the pendency of the appeal, the Veteran has been entitled to a 20 percent rating for moderate incomplete paralysis of the sciatic nerve pursuant to DC 8520. Significantly, on July 2007 VA examination, the examiner deemed the Veteran's peripheral neuropathy in all extremities to range from mild to moderate in severity. Additionally, the evidence of record demonstrates that the Veteran has consistently reported pain and numbness in his lower extremities that interfered with his ability to attend to his daily activities. He has been prescribed a variety of pain medications to assist in relief, and has been instructed on physical therapy exercises to minimize the pain. Therefore, because the Veteran's testimony, which the Board has determined to be both credible and competent, demonstrates that those symptoms have persisted since at least 2004, the Board finds that the Veteran is entitled to an increased rating of 20 percent for peripheral neuropathy of the left and right lower extremities for the pendency of the appeal. Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report and describe the severity of symptoms that are capable of lay observation). The Board finds, however, that the Veteran is not entitled to a rating higher than 20 percent for peripheral neuropathy of the lower extremities. Although the peripheral neuropathy of the lower extremities has been described by the Veteran as severe in several treatment records, there is no evidence of clinical findings of marked muscular atrophy or decreased muscle strength or sensation testing, as is required for a higher rating based upon severe disability under DC 8520. 38 C.F.R. § 4.124a, DC 8520. With regard to peripheral neuropathy of the right and left upper extremities, the findings in the medical records support a conclusion that the Veteran's diabetic neuropathy results in numbness and tingling in the hands that is sensory in nature. There is no evidence, however, of muscle atrophy or decreased strength. The Board therefore finds that the Veteran's upper extremity diabetic neuropathy symptoms are primarily sensory in nature and compatible with an incomplete paralysis of the median nerve that is mild in degree. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted for either extremity. The Board finds no evidence of organic changes, such as muscle atrophy or trophic changes, which would warrant a higher rating or demonstrate more than a mild degree of incomplete paralysis of the median nerve. 38 C.F.R. § 4.124a, DC 8515. The Board concludes that the evidence does not demonstrate that the Veteran's diabetic neuropathy of the right and left upper extremities approximates moderate incomplete neuritis, or neuralgia, such that a higher evaluation would be warranted under DC 8615 or 8715. The evidence demonstrates that the Veteran has mildly decreased sensation in both hands, and normal strength, 5/5, in each upper extremity. Accordingly, the Board finds that the Veteran's diabetic neuropathy of the upper extremities at most approximates mild incomplete paralysis of the median nerve, as contemplated by these diagnostic codes. 38 C.F.R. § 4.124a, DCs 8515, 8615, 8715. The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2009). In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that 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). In this case, the Board finds that the Schedule is not inadequate. The Schedule provides for higher ratings for the Veteran's peripheral neuropathy, but findings supporting a higher rating have not been documented. In addition, it has not been shown that the service-connected disability has required frequent periods of hospitalization or has produced marked interference with the Veteran's employment. Therefore, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted. The Board finds that the Veteran's peripheral neuropathy of the lower extremities has been no more than 20 percent disabling during the period under consideration. The Board finds that the Veteran's peripheral neuropathy of the upper extremities has been no more than 10 percent disabling during the period under consideration. The Board has considered whether a higher rating might be warranted for any time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that the Veteran is entitled to a 20 percent rating for his peripheral neuropathy of the right and left lower extremities for the period under appeal. He is entitled to no more than a 10 percent rating for his right and left upper extremities during the period under consideration. The benefit-of-the-doubt rule has been applied in this instance. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2009). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in July 2005, December 2005, March 2006, June 2007, and July 2008; rating decisions in October 2005, March 2006, and August 2007; a statement of the case in July 2006, and supplemental statements of the case in November 2006, December 2006, and September 2007. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006), Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the December 2008 supplemental statement of the case. The Board further finds that the RO has substantially complied with the Board's remands with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to these claims. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. (CONTINUED ON NEXT PAGE) ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus is denied. An increased rating higher than 20 percent for diabetes mellitus with diabetic retinopathy, erectile dysfunction, and peripheral vascular disease is denied. Increased ratings of 20 percent, but no higher, for peripheral neuropathy of the right and left lower extremities, for the period prior to April 20, 2006, are granted. Increased ratings higher than 10 percent for peripheral neuropathy of the right and left upper extremity are denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs