Citation Nr: 1118863 Decision Date: 05/17/11 Archive Date: 05/26/11 DOCKET NO. 07-01 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a vitamin deficiency, claimed as secondary to multiple sclerosis. 2. Entitlement to an evaluation in excess of 10 percent for mitral valve prolapse. 3. Entitlement to a separate grant of service connection for abnormal eye movements and transient vision loss associated with multiple sclerosis from March 25, 2005. 4. Entitlement to an increased rating for right upper extremity weakness and sensory impairment associated with multiple sclerosis, evaluated as 20 percent disabling from March 25, 2005, to October 17, 2006, then as 40 percent disabling to November 19, 2007, and as 70 percent disabling thereafter. 5. Entitlement to an increased rating for left upper extremity weakness and sensory impairment associated with multiple sclerosis, evaluated as 20 percent disabling from March 25, 2005, to October 17, 2006, and as 30 percent disabling thereafter. 6. Entitlement to an increased rating for right lower extremity weakness and sensory impairment associated with multiple sclerosis, evaluated as 10 percent disabling from March 25, 2005, to October 17, 2006, then as 20 percent disabling to November 19, 2007, and as 40 percent disabling thereafter. 7. Entitlement to an increased rating for left lower extremity weakness and sensory impairment associated with multiple sclerosis, evaluated as 10 percent disabling from March 25, 2005, to October 17, 2006, then as 20 percent disabling to November 19, 2007, and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from December 1989 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2005 and December 2005 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2009, the RO assigned separate disability ratings for various residuals of multiple sclerosis. Until that point, the Veteran was in receipt of a single 30 percent rating for "multiple sclerosis with abnormality in eye movements." The November 2009 rating action terminated the single rating then in effect and assigned 4 separate evaluations effective March 25, 2005, for weakness and sensory impairment in the upper and lower extremities bilaterally. The Board has recharacterized the appeal issues to reflect the changes and this will be discussed in further detail below. The Board further notes that the Veteran is not prejudiced by this action as it resulted in a higher overall disability rating for multiple sclerosis. See Bernard v. Brown, 4 Vet. App. 384 (1993). In May 2010, the RO granted entitlement to service connection for adjustment disorder with mixed anxiety and depressed mood, claimed as PTSD. As service connection has been granted for a psychiatric disorder, the Board finds that the appeal regarding entitlement to service connection for PTSD is resolved. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Veteran was scheduled for a Board hearing in February 2011, but failed to report. She has not provided good cause for such failure and has not requested to reschedule her hearing. Accordingly, the hearing request is considered withdrawn and Board will proceed with the case. 38 C.F.R. § 20.702(d) (2010). In the February 2011 appellate brief presentation, the representative suggested that incorrect effective dates had been assigned for the increased evaluation for mitral valve prolapse and for the separate ratings addressing upper and lower extremity impairment associated with multiple sclerosis. However, the Veteran did not timely file a notice of disagreement as to the effective date of such awards. However, there can be no freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet.App. 296 (2006). As such, this issue is not in appellate status and need not be referred for any further action. FINDINGS OF FACT 1. A vitamin deficiency is not, in and of itself, a disability for VA purposes. 2. The Veteran's mitral valve prolapse is not manifested by a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; there is no evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. 3. For the period beginning March 25, 2005, evidence of record shows increasing complaints of visual disturbances associated with multiple sclerosis and the disability picture is consistent with active eye disease. 4. For the period beginning March 25, 2005, right upper extremity weakness and sensory impairment associated with multiple sclerosis is manifested by no worse than mild incomplete paralysis of all radicular groups; for the period beginning October 17, 2006, it is manifested by no worse than moderate incomplete paralysis of all radicular groups; and, for the period beginning November 19, 2007, it is manifested by no worse than severe incomplete paralysis of all radicular groups. 5. For the period beginning March 25, 2005, left upper extremity weakness and sensory impairment associated with multiple sclerosis is manifested by no worse than mild incomplete paralysis of all radicular groups; for the period beginning October 17, 2006, it is manifested by no worse than moderate incomplete paralysis of all radicular groups; and, for the period beginning November 19, 2007, it is manifested by severe incomplete paralysis. 6. For the period beginning March 25, 2005, right lower extremity weakness and sensory impairment associated with multiple sclerosis is manifested by no worse than moderate incomplete paralysis of the sciatic nerve; for the period beginning October 17, 2006, it is manifested by no worse than moderately severe incomplete paralysis of the sciatic nerve; and, for the period beginning November 19, 2007, it is not manifested by severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve. 7. For the period beginning March 25, 2005, left lower extremity weakness and sensory impairment associated with multiple sclerosis is manifested by no worse than moderate incomplete paralysis of the sciatic nerve; for the period beginning October 17, 2006, it is manifested by no worse than moderately severe incomplete paralysis of the sciatic nerve; and, for the period beginning November 19, 2007, it is manifested by no worse than severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve. CONCLUSIONS OF LAW 1. Service connection for a vitamin deficiency, claimed as secondary to multiple sclerosis, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2010). 2. The criteria for an evaluation greater than 10 percent for mitral valve prolapse are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.20, 4.104, Diagnostic Code 7000 (2010). 3. For the period beginning March 25, 2005, a separate grant of a 10 percent evaluation for abnormal eye movements and transient vision loss associated with multiple sclerosis is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8018 (2010); 38 C.F.R. §§ 4.20, 4.84a, Diagnostic Codes 6000-6009 (2008). 4. Regarding right upper extremity weakness and sensory impairment associated with multiple sclerosis, the criteria for initial evaluations in excess of 20 percent from March 25, 2005; 40 percent from October 17, 2006; and 70 percent from November 19, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7 4.124a, Diagnostic Codes 8018, 8513 (2010). 5. Regarding left upper extremity weakness and sensory impairment associated with multiple sclerosis, the criteria for initial evaluations in excess of 20 percent from March 25, 2005; and 30 percent from October 17, 2006 have not been met; the criteria for a 60 percent evaluation have been met from November 19, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Codes 8018, 8513. 6. Regarding right lower extremity weakness and sensory impairment associated with multiple sclerosis, the criteria for initial evaluations in excess of 10 percent from March 25, 2005; 20 percent from October 17, 2006; and 40 percent from November 19, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Codes 8018, 8520 (2010). 7. Regarding left lower extremity weakness and sensory impairment associated with multiple sclerosis, the criteria for initial evaluations in excess of 10 percent from March 25, 2005; 20 percent from October 17, 2006; and 40 percent from November 19, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Codes 8018, 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in April 2005, October 2005, July 2007, June 2008 and March 2010, the Veteran was advised of the information and evidence needed to substantiate and complete claims for increased ratings and for service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. She was also provided notice regarding how disability ratings and effective dates are determined and was furnished notice of applicable rating criteria. The claims were most recently readjudicated in the December 2010 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA has also fulfilled its duty to assist the Veteran. The claims file contains private medical records, VA medical records, and Social Security Administration records. The Veteran underwent VA examinations in July 2005 and August 2007. The Board acknowledges that the August 2007 heart examination was considered insufficient because it did not provide a METs level. Information regarding the applicable METs level was requested in January 2008, but apparently not received. The Veteran was then scheduled for additional examinations in January 2008 and April 2010. She failed to report for the scheduled examinations, with the exception of an April 2010 eye examination. See 38 C.F.R. § 3.655 (2010). The Board acknowledges the Veteran's statements that she is unable to drive due to multiple sclerosis, that she does not trust transportation services provided by the medical centers, and that she has had bad experiences with VA and compensation and pension examinations. The Board observes, however, that the duty to assist is not a one-way street. If a veteran wishes help, he/she cannot passively wait for it in those circumstances where he/she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has essentially declined to attend scheduled examinations and a remand for additional attempts at examination would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of the adjudication. 38 C.F.R. § 3.159(c). Analysis The Board has reviewed all the evidence in the Veteran's claims folder. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). Service connection The Veteran contends that she is entitled to service connection for a vitamin deficiency secondary to her service-connected multiple sclerosis. As noted in an August 2007 statement, she had reported been told by a VA doctor that she had a vitamin B12 deficiency caused by multiple sclerosis. She was informed that she would either have to receive B12 shots or take pills for the rest of her life. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability, the Veteran must show: (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, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Without a currently diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A March 2005 addendum by a VA neurologist indicates that the Veteran's B12 level was 154 and that a message was left on her answering machine to call back. Additionally, a note was sent to the primary care provider. An April 2005 e-mail from the VA medical center Women's Veteran Program Manager indicates that, per the Veteran's physician, her vitamin B12 was very low and that the deficiency could be causing many of her symptoms. An April 2005 injections note indicates that she was given a cyanocobalamin (B12) injection. An October 2006 outpatient note indicates the Veteran was taking B12 tablets and that her B12 level was excellent in July. On review, the Board finds that a vitamin deficiency is akin to a laboratory result and is not, in and of itself, a disability. See 61 Fed. Reg. at 20,445 (May 7, 1996). The applicable laws and regulations do not permit a grant of service connection for a laboratory finding, absent a showing of related disability. See Brammer, supra. The Board acknowledges the VA note indicating that a vitamin deficiency could be causing many of the Veteran's symptoms. The note does not indicate the specific symptoms nor does it indicate any chronic disorder or distinct disability manifested by a vitamin deficiency. The Veteran is currently service-connected for multiple sclerosis and is rated for various residuals associated with this disease. She is also service-connected for numerous other disabilities. To the extent that her symptoms are already contemplated by the ratings assigned, an additional or separate rating for a vitamin deficiency would violate the provisions against pyramiding. 38 C.F.R. § 4.14 (the evaluation of the same disability or manifestation under different diagnoses is to be avoided). As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Increased ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Mitral valve prolapse In January 1999, the RO granted entitlement to service connection for mitral valve prolapse and assigned a noncompensable evaluation effective December 16, 1997. In March 2005, the Veteran submitted a claim for increase. In August 2005 and December 2005, the RO continued the noncompensable evaluation. The Veteran disagreed and subsequently perfected an appeal of this issue. In November 2009, the RO increased the evaluation for mitral valve prolapse to 10 percent effective March 25, 2005. Mitral valve prolapse is not specifically listed in the rating schedule. When an unlisted condition is encountered it will be permissible to rate 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. Pursuant to the rating schedule, valvular heart disease (including rheumatic heart disease) is rated as follows: a 10 percent disability rating is warranted if a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required; a 30 percent disability rating is warranted if a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray; a 60 percent disability rating is warranted if there is more than one episode of acute congestive heart failure in the past year, a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent; and a 100 percent disability rating is warranted when there is chronic congestive heart failure, or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction less than 30 percent. A 100 percent rating is also warranted during active infection with valvular heart damage and for 3 months following cessation of therapy for active infection. 38 C.F.R. § 4.104, Diagnostic Code 7000. The Board acknowledges that the regulations pertaining to cardiovascular disabilities were amended during the course of this appeal. Effective October 6, 2006, VA revised 38 C.F.R. § 4.100, which addresses the application of the evaluation criteria for Diagnostic Codes 7000-7007, 7011, and 7015-7020. See 71 Fed. Reg. 52,459-60 (Sept. 7, 2006). The revised regulation contains the following provisions: (a) In all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or x-ray) is present and whether or not there is a need for continuous medication must be ascertained. (b) Even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, METs testing is required except (1) when there is a medical contraindication; (2) when the left ventricular ejection fraction has been measured and is 50 percent or less; (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and (4) when a 100 percent evaluation can be assigned on another basis. (c) If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability. 38 C.F.R. § 4.100. The amendments did not change the rating criteria set forth in Diagnostic Code 7000. On review, the claims file does not contain evidence of current METs testing. As discussed, VA attempted to re-examine the Veteran, but she failed to report as scheduled. The Board notes that a September 1996 exercise echocardiography report from a private physician indicates that the Veteran achieved a work load of 10 METs with mild dyspnea on exertion. A VA primary care note dated March 25, 2005, indicates that the Veteran had mitral valve prolapse with a positive tilt table test in the past. The examiner noted a diagnosis of mitral valve prolapse and that she would renew the Veteran's current beta blocker. On VA examination in July 2005, the Veteran reported a history of mitral valve prolapse, but denied a history of syncope. On physical examination, S1 and S2 heart sounds were audible with a regular rate and rhythm. There was a grade 1/6 low-pitched mitral regurgitation murmur, holosystolic. Diagnosis remained mitral valve prolapse. An August 2005 VA outpatient note references an echocardiogram in November 2002 that showed mitral valve prolapse, bi-leaflet; and mild mitral regurgitation. The Veteran underwent EKG testing in April 2006, which showed 62 beats per minute, normal sinus rhythm, and nonspecific intraventricular block. A May 2006 addendum by the Veteran's physician indicates that recent echocardiogram testing did not show mitral valve prolapse. On VA examination in August 2007, the Veteran reported that she was taking metoprolol with a reduction in the irregular heartbeats. She reported monthly plus episodes of syncope, constant fatigue and dizziness, and dyspnea on mild exertion. On examination, heart rhythm was regular and there was no murmur, click, or pericardial rub. Testing showed an ejection fraction greater than 50 percent. Heart size on x-ray was reported as normal. The examiner noted that echocardiogram in 1996 showed marked mitral valve prolapse with mild mitral regurgitation. The diagnosis was mitral valve prolapse. The examiner further noted that the Veteran was on beta blockers, with good results. She has irregular heart beating without episodes of tachycardias. She had also noted feeling dizzy and claimed to have passed out. She has not been diagnosed with heart failure. In April 2010, the Veteran underwent an echocardiogram, which showed normal left ventricle size and systolic function. Estimated ejection fraction was 58 percent. There was mild bowing of the mitral leaflets without definite prolapse. On review, the criteria for an evaluation greater than 10 percent for mitral valve prolapse have not been met or nearly approximated. The Veteran takes medication and the Board acknowledges her complaints of fluttering heart, dizziness, and passing out. The available evidence, however, does not show a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; and there is no evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. For the above reasons, there is no support for a rating in excess of 10 percent for mitral valve prolapsed over any portion of the rating period on appeal. Multiple sclerosis In January 1999, the RO granted entitlement to service connection for multiple sclerosis with abnormality in eye movements and assigned a 30 percent evaluation effective December 16, 1997. In March 2005, the Veteran submitted a claim for increase. In August 2005, the RO denied an evaluation greater than 30 percent for multiple sclerosis with abnormality in eye movements and transient vision loss. In December 2005, the 30 percent evaluation was again continued. The Veteran disagreed with this decision and subsequently perfected this appeal. Under Diagnostic Code 8018, multiple sclerosis warrants a minimum evaluation of 30 percent, which contemplates "ascertainable residuals." The provisions of 38 C.F.R. § 4.124a provide that multiple sclerosis may also be rated from 30 to 100 percent in proportion to the impairment of motor, sensory, or mental function. In determining any additional disability, the Board must consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Id. In a November 2009 decision, the RO assigned separate ratings for various impairments associated with the Veteran's multiple sclerosis. The Board notes that the appeal regarding the evaluation for multiple sclerosis does not stem from the initial grant of service connection; however, as it involves the initial assignment of the separate ratings, the Board has phrased the issues to consider what evaluations are warranted from March 25, 2005, the effective date assigned. See Fenderson. a. Abnormal eye movements and transient vision loss The November 2009 rating decision effectively terminated the evaluation for multiple sclerosis based on transient blurred vision and abnormality in eye movements, effective March 25, 2005. From that date forward, the multiple sclerosis was rated based on sensory involvement in the extremities. However, because eye problems are wholly distinct and separate from the neurologic symptoms shown in the extremities, assignment of another separation evaluation is appropriate. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In the instant case, the record supports assignment of a separate 10 percent rating for the Veteran's eye symptoms associated with her multiple sclerosis for the period in question, from March 25, 2005. The reasons and bases for this conclusion will be detailed below. VA neurology consultation dated March 25, 2005, documents the Veteran's reported episodes of blurred vision. The Veteran underwent a VA ocular examination in June 2005. She reported that over the past year, she had been experiencing intermittent episodes of blurry vision in the right eye that would last anywhere from several hours to several days and would occur approximately two to three weeks per month and she would have difficulty driving, reading, and performing average daily tasks. The episodes were often brought on by an increase in body temperature and were often induced by physical exertion or stress. She denied pain, diplopia, headache or other ocular symptoms. An extensive ophthalmic evaluation revealed best corrective visual acuity as 20/20 at distance and near in both eyes. Extraocular motility evaluation revealed full motilities without evidence of diplopia or gaze palsy. Assessment included transient vision loss, secondary to multiple sclerosis; multiple sclerosis; and myopia. The examiner opined that the transient vision loss was secondary to Uhthoff's phenomenon, which is a common finding in multiple sclerosis patients. Essentially, any small increase in body temperature causes a heat-induced nerve blockade of the optic nerve resulting in transient vision loss. During the evaluation there was no evidence of permanent optic nerve disease. The examiner opined that the symptoms of transient vision loss were moderately incapacitating. The Veteran was seen for a VA optometry consult in April 2006. She reported that while reading her right eye blurred and cleared continually for approximately 12 months with increasing frequency over the last month. She described the symptoms as "looking out of a window on a rainy day." She denied any pain on eye movement, flashes, floaters, double vision, burning, itching, or tearing. Subjective refraction allowed for best corrected visual acuity of 20/20 in both eyes when taken monocularly. Certain testing resulted in complaints of diplopia but the Veteran felt that her eyes were extra tired that day. Assessment included multiple sclerosis with visual disturbances, right eye, in the absence of visible ocular pathology. There was no evidence of optic neuritis or other ocular pathology that would explain her symptoms. An October 2006 statement from Dr. A. D. documents the Veteran's complaints of visual changes in her right eye. She was instructed by a neuro-opthalmologist to wear a patch when necessary. On examination, she had some disconjugate gaze in the right eye, otherwise cranial nerves appeared symmetrical. On VA examination in August 2007, the Veteran reported the same problems of transient vision loss and that the sensation of "looking through rain" had progressed and was occurring 99 percent of the time. She claimed incapacitation and inability to read or function even though she drove to the examination. On examination, corrected visual acuity, near and far, was 20/20 in both eyes. There were no visual field defects and no diplopia. The diagnosis remained transient vision loss. The examiner stated that the examination revealed no solid evidence of ophthalmic manifestations of multiple sclerosis. There was no evidence of optic atrophy, inter-nuclear ophthalmoplegia, gaze palsy or other manifestation. The examiner noted that given the progressive nature of the symptoms and the fact that they are now constant, he doubted the presence of Uhthoff's. The examination did not reveal a refractive shift that could be responsible for the symptoms and there were no new ocular findings that differed from the 2005 examination. In response to the question "is conjunctivitis, iritis, retinitis, scleritis or other eye disease currently active," the examiner indicated "yes." The Veteran most recently underwent a VA examination in April 2010. At that time, she reported her problems of transient vision loss had progressed and were occurring 100 percent of the time. She again claimed incapacitation even though she drove to the examination. Objectively, corrected vision, near and distance, was 20/20 in both eyes. The diagnosis was transient vision loss right eye. The examiner stated that the examination revealed no change from the previous examination. The Veteran again claimed transient vision loss in the right eye and now notices transient changes in the left, the examination did not support any ophthalmic damage or dysfunction. There was no evidence of optic neuritis, internuclear ophthalmoplegia, palsy, or optic atrophy. Again, no rating is in effect since March 25, 2005. However, the evidence reflects complaints and symptomatology and is in equipoise as to whether such represent manifestations of multiple sclerosis. Accordingly, a grant of service connection is deemed warranted, essentially restoring the grant that was terminated by the November 2009 decision. The Board will now consider the rating percentage to be assigned for the symptomatology demonstrated in the record. In determining what evaluation is warranted, the Board acknowledges that the portion of the rating schedule addressing disabilities of the eyes was revised effective December 10, 2008. Only claims received on or after December 10, 2008 will be evaluated under the new criteria. See 73 Fed. Reg. 66543-54 (Nov. 10, 2008). The Veteran's claim was received prior to December 10, 2008, and therefore, the revised regulations are not for application. Diagnostic Code 6080 addresses impairment of the visual field. On review, the Board finds that the Veteran's transient vision loss is more appropriately evaluated as an eye disease. See 38 C.F.R. § 4.84a, Diagnostic Code 6000-6009 (2008). The Board acknowledges that the Veteran does not specifically have any of the eye diseases listed at Diagnostic Codes 6000 to 6009. Notwithstanding, on VA examination in August 2007, the examiner indicated that the Veteran had active eye disease. Under the applicable rating criteria, the referenced eye disabilities, in chronic form, are to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. The minimum rating during active pathology is 10 percent. Id. On review, there is no evidence of compensable visual acuity or field loss impairment. Given the examiner's statement as noted above, however, as well as the Veteran's continued complaints of increasing visual disturbances, such as blurred vision and transient vision loss, the Board finds the disability picture consistent with active eye disease and the requirements for a 10 percent evaluation have been met. At no time during the appeal period has the transient vision loss been more than 10 percent disabling and staged ratings are not warranted. See Fenderson. b. Weakness and sensory impairment of the bilateral upper extremities In November 2009, the RO assigned separate evaluations for right and left upper extremity weakness and sensory impairment associated with multiple sclerosis. The evaluations were staged throughout the appeal period. See Fenderson. Specifically, the right upper extremity was evaluated as 20 percent disabling from March 25, 2005, 40 percent disabling from October 17, 2006, and 70 percent disabling from November 19, 2007; and the left upper extremity was evaluated as 20 percent disabling from March 25, 2005 and 30 percent from October 17, 2006. The upper extremity evaluations were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under this provision, incomplete paralysis of all radicular groups of the major extremity is evaluated as follows: mild (20 percent); moderate (40 percent); and severe (70 percent). Complete paralysis of the major extremity is assigned a 90 percent evaluation. Id. Incomplete paralysis of all radicular groups of the minor extremity is evaluated as follows: mild (20 percent); moderate (30 percent); and severe (60 percent). Complete paralysis of the minor extremity is assigned an 80 percent evaluation. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve. 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, Diseases of the Peripheral Nerves. Evidence of record establishes that the Veteran is right-hand dominant and the right upper extremity is considered the major extremity. See 38 C.F.R. § 4.69 (2010). A March 25, 2005 VA neurology consultation report indicates that the Veteran's motor strength was full and there was mild incoordination with movements. In June 2005, she was seen for a physical medicine rehab education consult. She denied any weakness in her arms, but was easily fatigued. On physical examination, there was full range of motion of the upper extremity joints and motor strength was 5/5. Sensation was grossly intact to light touch. Reflexes were symmetric. The Veteran underwent an initial physical therapy evaluation in July 2005 to improve fine motor control in her hands and fingers. Objectively, strength was grossly 5/5 throughout the upper extremities and hand grip on the right was 33 pounds and on the left 55 pounds. On VA examination in July 2005, the Veteran reported a decrease in fine motor function. On examination, muscle strength was 4/5 in the upper extremities. There was positive sensation to pinprick, although sometimes the Veteran stated the pinprick felt dull. Deep tendon reflexes were +2/4 in the bilateral biceps. The Veteran was seen for a VA neuropsychology consult in June 2006 and underwent various testing. The examiner noted mild impairment was evident on a measure of overall tactile motor functioning, non-dominant hand visual-motor coordination. An October 17, 2006, statement from Dr. A. D. indicates that the Veteran had decreased fine motor skills. On manual muscle testing there was significant give-way weakness throughout. Deep tendon reflexes were slightly less in the right upper extremity compared to the left with 1/4. On manual muscle testing in the right upper extremity deltoid, her intrinsics and grasp were 3/5, triceps 3+/5, and biceps and wrist extensors 4/5. Left upper extremity deltoid, biceps, wrist extensors and triceps were 4/5. Intrinsics and grasp were 3/5. The examiner noted that it appeared as though the Veteran's manual muscle test had worsened. On December 5, 2006, the Veteran was seen for a VA physical medicine rehab education consult. On physical examination, she had full range of motion in the upper extremities. Motor strength was 4+/5 in the bilateral deltoids and biceps, 4-/5 bilateral triceps, 4-/5 bilateral wrist extensors and flexors, and 4-/5 bilateral grip strength. There was no evidence of spasticity. Sensation was grossly intact to light touch and reflexes were symmetrical. The examiner noted that neurologic deficits had worsened as compared to previous evaluation and she had declined in muscle strength. On December 20, 2006, the Veteran was seen for a VA occupational therapy initial evaluation. She reported a progression of upper extremity weakness and incoordination. She reported that her hands were "lazy" and did not work as fast as she wanted them to. Strength in the upper extremities was described as impaired. Shoulder was 4-/5 bilaterally; elbow 4/5 bilaterally; and wrist 4/5 bilaterally. Grasp was 40 pounds on the right and 50 pounds on the left. Fine motor skills were also impaired in the upper extremities. The examiner noted decreased strength and decreased gross/fine coordination of the upper extremities due to progression of multiple sclerosis. The Veteran presented for a VA neurology consult in June 2007. On physical examination, strength was 5/5 in the biceps, triceps, sternocleidomastoids, wrist flexors and extensors, grip, and finger abductors. Reflexes were 2+ in the biceps and triceps. Sensation was impaired to soft touch, vibration, pin-prick from sternum down on trunk and on upper extremities expect for forearms, right greater than left for decreased sensations. Assessment was relapsing/remitting multiple sclerosis now secondary progressive. The Veteran underwent a VA examination in August 2007. She reported that her arms were weak, worse on the left side. She reported numbness and paresthesias in the hands. On physical examination, muscle tone was normal and there was no atrophy present. Deep tendon reflexes in the upper extremities were 2+. The Veteran was evaluated by a private physician, Dr. M. M. on November 19, 2007. (The Board notes that the text of this report indicates she was seen on October 19, 2007; however, the report is dated November 19th and was dictated on November 20th and signed November 28th.) On neurologic evaluation, reflexes were appreciated in the wrist area on the right and left of 0. There was apparent muscle wasting in the palm of the hands, the right side being more severe than the left. Grip strength was 4/5 right and left. Fine and dexterous movements revealed difficulty in operating a safety pin. She was unable to hold a 2.5 pound weight. Motor power was reduced in the upper extremities. Flexure of the elbow was 2/4 on the right and left and forward motion of the shoulder was 1/4 on the right and left. The examiner noted that she could only lift less than 2 pounds on occasion and pushing and pulling were limited in the upper extremities secondary to weakness and defect in coordination. For the period from March 25, 2005, to October 16, 2006, the disability picture associated with bilateral upper extremity impairment approximates no more than mild incomplete paralysis of the radicular groups. As discussed, the objective findings appear minimal - i.e., slightly reduced strength and minor incoordination. Thus, evaluations greater than 20 percent are denied. For the period from October 17, 2006, to November 18, 2007, the disability picture associated with bilateral upper extremity impairment approximates no more than moderate incomplete paralysis of all radicular groups. Evidence of record shows that the Veteran's multiple sclerosis was progressing, with an overall decrease in fine motor skills and decreased strength and incoordination. On VA examination in August 2007, however, muscle tone was reported as normal and there was no atrophy. The Board observes that a little used part of the musculoskeletal system may be expected to show evidence of disuse, such as atrophy. See 38 C.F.R. § 4.40 (2010). Thus, the Board finds that evaluations in excess of 40 percent for the right upper extremity and 30 percent for the left upper extremity are not warranted. For the period beginning November 19, 2007, the Board finds that a 60 percent evaluation is warranted for left upper extremity weakness and sensory impairment. In making this determination, the Board observes that the RO assigned a 70 percent evaluation for right upper extremity weakness and sensory impairment effective November 19, 2007. In reviewing the evidence, there are very similar findings on both the right and the left. That is, the November 2007 private evaluation indicates reflexes at the wrist were 0, there was decreased motor power, and the Veteran could only lift less than 2 pounds. There was also muscle wasting in the palms. The Board acknowledges that the muscle wasting was reportedly more severe on the right. Nonetheless, and resolving any reasonable doubt in the Veteran's favor, the overall disability picture on the left appears to more nearly approximate severe incomplete paralysis of all radicular groups. Despite the impairments described, evidence of record does not support a finding of complete paralysis of all radicular groups on either side. Thus, evaluations in excess of 70 percent on the right and 60 percent on the left are not warranted. c. Weakness and sensory impairment of the bilateral lower extremities In November 2009, the RO also assigned separate evaluations for right and left lower extremity weakness and impairment associated with multiple sclerosis. The evaluations were staged throughout the appeal period. See Fenderson. Specifically, the right and left lower extremity impairment were both evaluated as 10 percent disabling from March 25, 2005, 20 percent disabling from October 17, 2006, and 40 percent disabling from November 19, 2007. The lower extremity evaluations were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this provision, incomplete paralysis of the sciatic nerve is evaluated as follows: mild (10 percent); moderate (20 percent); moderately severe (40 percent); and severe, with marked muscular atrophy (60 percent). Complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, warrants an 80 percent evaluation. Id. The Veteran underwent a VA neurology consult on March 25, 2005. She had been given a walker two years ago, but did not use it. She only used a Canadian crutch, when she has to stand for a long period of time. She was able to get out of a chair without using her arms, and could walk on her toes and heels and tandem walk. Motor strength was full. There was mild incoordination with movements. Sensation was reduced in the distal lower extremities, more on the right, and sensation to vibration was mildly reduced in the feet. Deep tendon reflexes were 2+. In June 2005, the Veteran was seen for a VA physical medicine rehab consult and was evaluated for mobility aids and home needs. She complained of weakness in her legs and that she was easily fatigued. She had decreased stamina and sometimes her gait is off balance with stumbling. She had Canadian crutches but does not know how to use both at once and most days uses only one for walking. She has tried a cane but kept losing her grip. On physical examination, she was able to ambulate independently without any assistive devices and carried her crutches. There was full range of motion in the lower extremities and motor strength was 5/5 on the right. There was mild weakness in the left lower extremity with hip flexor strength being 4/5. There was full strength at the left knee and ankle. Sensation was grossly intact to light touch and reflexes were symmetric. The Veteran underwent a VA physical therapy evaluation in July 2005. Objectively, she leaned significantly on the right crutch and gait was reciprocal with mildly ataxic appearance. Balance was good with crutches. Hip strength was grossly 3+/5 (tremulous) and quads were 4+/5. A seated rollator was recommended. On VA examination in July 2005, muscle strength was 4/5 in the lower extremities. She walked with a cane in the right hand. Sensation was positive to pinprick although the Veteran sometimes stated that it felt dull. Deep tendon reflexes were +2/4 in the patellar area. VA neurology note dated in July 2006 indicates that the Veteran ambulated unaided with no apparent motor or gait abnormalities. An October 17, 2006 statement from Dr. A. D. documents the Veteran's complaints of having significant difficulty standing for greater than 10 minutes without losing her balance and falling. She had gone from forearm crutches to a rolling walker. She occasionally used a cane or forearm crutches. She was limited going up and down stairs. At home, she walked while holding furniture and the walls. During ambulation she appeared very unstable. On manual muscle testing in the lower extremities, the right hip flexor, anterior tib, and extensor hallucis longus were 3/5, quadriceps was 3+/5 and toe flexors and hamstrings were 4/5. In the left lower extremity, hip flexors, quadriceps, and anterior tib were 3+/5; and toe flexors and hamstrings were 4/5. Without the rolling walker she had a swing base of support and varied from a very wide base gait pattern to a narrow, almost crossing over, and there was occasional recurvatum. The physician noted that it appeared the Veteran's manual muscle test had worsened and that her gait pattern had changed significantly, with poorer balance and a very varying base of support. In December 2006, the Veteran was seen for a VA physical medicine rehab education consult. On physical examination, she had full range of motion of the lower extremity joints. Motor strength in the lower extremities was as follows: right hip flexor 4-/5, left hip flexor 4/5, bilateral quadriceps 4/5, hamstrings 4/5, and ankle dorsi and plantar flexors 4/5. There was no evidence of spasticity. Sensation was grossly intact to light touch and reflexes were symmetrical. The examiner indicated that neurologic deficits had worsened as compared to previous evaluation and she had declined in muscle strength. The Veteran underwent a VA neurology consult in June 2007. She reported that she used a cane and rollator walker, but claimed she did not always need them. On physical examination, strength was 5/5 in the hip flexors, quadriceps, and plantar flexors and extensors bilaterally. Reflexes were 2+ at the patellar and Achilles bilaterally. Babinski and Hoffman signs were negative. Sensation was impaired to soft touch in the lower extremities. The Veteran was quite fatigued and gait testing was deferred. She used a walker, slow with a wide gait. The assessment was relapsing/remitting multiple sclerosis with secondary progressive. On VA examination in August 2007, the Veteran reported that her legs have a sensation of buckling when she has been standing for more than 15 minutes. She could only walk short distances due to weakness. She reported constant difficulty with gait. On physical examination, muscle tone was normal and there was no muscle atrophy present. Deep tendon reflexes in the bilateral lower extremities were 2+, with the exception of plantar reflexes which were described as normal. There were no findings of ataxia, incoordination or spasticity. The examiner noted that the Veteran had considerable disability due to multiple sclerosis and found it hard to ambulate without her walker and had problems with balance. The Veteran underwent a private examination by Dr. M. M. on November 19, 2007. On neurologic evaluation, reflexes in the infrapatellar region were 2/4 on the right and 3/4 on the left. Her gait was unsteady with the use of forearm crutches. Lower extremity circumference relative to the knee was done at a distance of 15 cm. Proximally on the right it was 46 and the left was 48.5 cm. Distally on the right it was 32.5 and on the left 33 cm. On evaluation of motor power in the lower extremities, flexure of the knee was 4/5 bilaterally. All other ranges of motion against resistance were rated as 2/5 on the right and 3/5 on the left. The examiner indicated she was limited in standing and walking to 1 hour or less. She was limited in pushing and pulling in the lower extremities secondary to weakness and defect in coordination as per the examination. On review, the Board finds that the preponderance of the evidence is against initial evaluations in excess of those assigned by the RO. For the period from March 25, 2005, to October 16, 2006, the disability picture associated with bilateral lower extremity weakness and sensory impairment approximates no more than mild incomplete paralysis of the sciatic nerve. The Board acknowledges the Veteran's complaints of weakness and loss of balance. However, although she had assistive devices, it appears that for the most part, she was able to ambulate independently. Objective findings show mild incoordination, and strength was only slightly reduced and sensation was largely intact. Thus, evaluations greater than 10 percent are denied for this portion of the rating period on appeal. For the period from October 17, 2006, to November 18, 2007, the disability picture associated with bilateral lower extremity impairment approximates no more than moderate incomplete paralysis of the sciatic nerve. Evidence of record suggests the disability was progressing, with reduced strength and the Veteran had difficulty with ambulation and used a rolling walker. Notwithstanding, the Veteran reported in a June 2007 neurology consult that she did not always need assistive devices. On review, the Board does not consider the objective findings consistent with moderately severe disability. Thus, evaluations greater than 20 percent are not warranted for the period in question. For the period beginning November 19, 2007, the disability picture associated with bilateral lower extremity impairment approximates no more than moderately severe incomplete paralysis of the sciatic nerve. The Board acknowledges the November 2007 private report showing decreased reflexes and strength. Gait was unsteady even with crutches and the Veteran was clearly limited due to weakness and incoordination. Objective evidence, however, does not show findings consistent with severe incomplete paralysis and there is no evidence of any marked muscular atrophy of the lower extremities. Indeed, reflexes were no worse than 2/4, and motor strength was no worse than 2/5, which, while representative of significant loss of strength, is adequately reflected in the 40 percent evaluations already in effect during the period in question. Accordingly, evaluations in excess of 40 percent are not warranted. With regard to the issues decided herein, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed above, the rating criteria set forth reasonably describe the Veteran's disability level and symptomatology. There are no unusual manifestations that are beyond the scope of that considered in the schedule. Thus, as the Veteran's disability picture related to multiple sclerosis is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and no referral for extraschedular evaluation is required. Id. ORDER Entitlement to service connection for a vitamin deficiency, claimed as secondary to multiple sclerosis, is denied. An evaluation in excess of 10 percent for mitral valve prolapse is denied. For the period beginning March 25, 2005, a separate 10 percent award of service connection for abnormal eye movements and transient vision loss associated with multiple sclerosis is granted, subject to the laws and regulations governing the award of monetary benefits. Initial evaluations greater than 20 percent from March 25, 2005, 40 percent from October 17, 2006, and 70 percent from November 19, 2007, for right upper extremity weakness and sensory impairment associated with multiple sclerosis are denied. Initial evaluations greater than 20 percent from March 25, 2005, and 30 percent from October 17, 2006, for left upper extremity weakness and sensory impairment associated with multiple sclerosis are denied. For the period beginning November 19, 2007, a 60 percent evaluation is granted for left upper extremity weakness and sensory impairment associated with multiple sclerosis, subject to the laws and regulations governing the award of monetary benefits. Initial evaluations greater than 10 percent from March 25, 2005, 20 percent from October 17, 2006, and 40 percent from November 19, 2007, for right lower extremity weakness and sensory impairment associated with multiple sclerosis are denied. (CONTINUED ON NEXT PAGE) Initial evaluations greater than 10 percent from March 25, 2005, 20 percent from October 17, 2006, and 40 percent from November 19, 2007, for left lower extremity weakness and sensory impairment associated with multiple sclerosis are denied. ____________________________________________ ERIC LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs