Citation Nr: 1237291 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 08-39 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased initial evaluation for the Veteran's service-connected peripheral neuropathy of the left upper extremity, evaluated as 20 percent disabling prior to July 13, 2009, and as 40 percent disabling thereafter. 2. Entitlement to an increased initial evaluation for the Veteran's service-connected peripheral neuropathy of the right upper extremity, evaluated as 20 percent disabling prior to July 13, 2009, and as 30 percent disabling thereafter. 3. Entitlement to an increased rating for the Veteran's service-connected peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling prior to June 28, 2011, and as 20 percent disabling thereafter. 4. Entitlement to an increased rating for the Veteran's service-connected peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling prior to June 28, 2011, and as 20 percent disabling thereafter. 5. Entitlement to an increased rating for the Veteran's service-connected residuals, hematoma, left thigh, with limitation of left knee flexion, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from January 1965 to January 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for peripheral neuropathy of the bilateral upper extremities, with each extremity evaluated as 20 percent disabling, and which denied claims for increased ratings for bilateral peripheral neuropathy of the lower extremities, each rated as 10 percent disabling, and for residuals, hematoma, left thigh, rated as 10 percent disabling. The Veteran appealed the issues of entitlement to increased initial evaluations, and entitlement to increased ratings. FINDINGS OF FACT 1. Prior to July 13, 2009, the Veteran's service-connected peripheral neuropathy of the left lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not moderate incomplete paralysis, neuritis, or neuralgia, of the lower radicular group. 2. Prior to July 13, 2009, the Veteran's service-connected peripheral neuropathy of the right lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not moderate incomplete paralysis, neuritis, or neuralgia, of the lower radicular group. 3. As of July 13, 2009, the Veteran's service-connected peripheral neuropathy of the left lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not severe incomplete paralysis, neuritis, or neuralgia, of the lower radicular group. 4. As of July 13, 2009, the Veteran's service-connected peripheral neuropathy of the right lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not but not severe incomplete paralysis, neuritis, or neuralgia, of the lower radicular group. 5. Prior to June 28, 2011, the Veteran's service-connected peripheral neuropathy of the left lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not moderate incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 6. Prior to June 28, 2011, the Veteran's service-connected peripheral neuropathy of the right lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not moderate incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 7. As of June 28, 2011, the Veteran's service-connected peripheral neuropathy of the left lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not moderately severe incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 8. As of June 28, 2011, the Veteran's service-connected peripheral neuropathy of the right lower extremity is shown to have been productive of complaints that include pain, weakness and tingling, but not but not moderately severe incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 9. The Veteran's service-connected residuals, hematoma, left thigh, with limitation of left knee flexion, is shown to have been productive of flexion to no less than 90 degrees. CONCLUSIONS OF LAW 1. Prior to July 13, 2009, the criteria for an initial evaluation in excess of 20 percent for service-connected peripheral neuropathy, left upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8512, 8612, 8712 (2011). 2. Prior to July 13, 2009, the criteria for an initial evaluation in excess of 20 percent for service-connected peripheral neuropathy, right upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8512, 8612, 8712 (2011). 3. As of July 13, 2009, the criteria for an evaluation in excess of 40 percent for service-connected peripheral neuropathy, left upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8512, 8612, 8712 (2011). 4. As of July 13, 2009, the criteria for an evaluation in excess of 30 percent for service-connected peripheral neuropathy, right upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8512, 8612, 8712 (2011). 5. Prior to June 28, 2011, the criteria for an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy, left lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2011). 6. Prior to June 28, 2011, the criteria for an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy, right lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2011). 7. As of June 28, 2011, the criteria for an evaluation in excess of 20 percent for service-connected peripheral neuropathy, left upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2011). 8. As of June 28, 2011, the criteria for an evaluation in excess of 20 percent for service-connected peripheral neuropathy, right upper extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2011). 9. The criteria for a rating in excess of 10 percent for service-connected residuals, hematoma, left thigh, with limitation of left knee flexion, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5260 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Initial Evaluations/Increased Ratings The Veteran asserts that he is entitled to increased initial evaluations/increased ratings for his service-connected peripheral neuropathy of the bilateral upper and lower extremities, and his residuals, hematoma, left thigh, with limitation of left knee flexion. During his hearing held at the RO in December 2011, the Veteran essentially testified that he had very poor grip strength, as well as numbness of the hands, foot pain, and difficulty walking. He stated that he retired at age 62, and that he had worked in construction and been a machine operator. With regard to the left leg hematoma (misidentified as the right leg in the hearing), the Veteran essentially indicated that he believed that his neuropathy has aggravated this disability. The Board notes that the Decision Review Officer indicated that the Veteran's June 2011 VA examination appeared to be inadequate, however, the Veteran twice stated that he did not want another examination. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In April 2006, the RO granted service connection for diabetes mellitus, and granted service connection for peripheral neuropathy of the bilateral lower extremities as secondary to diabetes mellitus. For each lower extremity, the RO assigned 10 percent evaluation, with an effective date of October 27, 2005. In November 2007, the RO granted service connection for bilateral peripheral neuropathy of the upper extremities as secondary to diabetes mellitus. For each upper extremity, the RO assigned 20 percent evaluation, with an effective date of October 5, 2007. The Veteran appealed the issues of entitlement to increased initial evaluations. In August 2008, the RO revised the Veteran's effective dates for service connection to June 8, 2006. In April 2012, the RO granted the claims, to the extent that it: 1) assigned a 20 percent evaluation for the left upper extremity, effective June 8, 2006, and a 40 percent evaluation as of July 13, 2009; 2) it assigned a 20 percent evaluation for the right upper extremity, with an effective date of June 8, 2006, and a 30 percent evaluation as of July 13, 2009; 3) it assigned a 20 percent evaluation for the left lower extremity, with an effective date of June 28, 2011; and 4) it assigned a 20 percent evaluation for the right lower extremity, with an effective date of June 28, 2011. Since these increases did not constitute full grants of the benefits sought, the increased initial evaluation/increased rating issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The RO has evaluated the Veteran's peripheral neuropathy under 38 C.F.R. § 4.124a. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, DC's 8510 through 8540 (2011). Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2011). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2011). A. Bilateral Upper Extremities As for the history of these disabilities, two December 2005 VA examination reports showed that the Veteran was noted to have bilateral carpal tunnel syndrome (CTS), worse on the right, and moderate in severity. The report notes complaints of numbness in the hands. On examination, muscle strength was 5/5, and there was no weakness or atrophy. All extremities were characterized as normal. Sensation was normal. An electromyography (EMG) study was determined to be consistent with peripheral neuropathy. See 38 C.F.R. § 4.1 (2011). The Board notes that although service connection is not in effect for CTS, the Board has not attempted to dissociated any CTS symptoms from the Veteran's bilateral peripheral neuropathy of the upper extremities. See Mittleider v. West, 11 Vet. App. 181 (1998). The RO has evaluated the Veteran's bilateral upper extremity peripheral neuropathy as paralysis of the lower radicular group under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8512. Under DC 8512, a 20 percent evaluation is warranted for mild incomplete paralysis of the lower radicular group (bilateral). A 30 percent rating (minor) and a 40 percent rating (major) is warranted for moderate incomplete paralysis. Id. A 40 percent rating (minor) and a 50 percent rating (major) is warranted for severe incomplete paralysis. Id. Diagnostic Codes 8612 and 8712 address the criteria for evaluating neuritis and neuralgia of the lower radicular group, 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 8612, 8712 (2011). The Veteran's service-connected peripheral neuropathy of the left (major) upper extremity, has been evaluated as 20 percent disabling prior to July 13, 2009, and as 40 percent disabling thereafter. The Veteran's service-connected peripheral neuropathy of the right (minor) upper extremity, has been evaluated as 20 percent disabling prior to July 13, 2009, and as 30 percent disabling thereafter. For both extremities, the date of service connection is June 8, 2006. a. Prior to July 13, 2009 The relevant medical evidence is summarized as follows: VA progress notes show that in January and March of 2006, the Veteran complained of hand numbness. He reported wearing hand splints at night, and sometimes during the day. On examination, he was found to have weak hand grasps, right greater than left. There were no gross motor or sensory deficits. An October 2007 VA diabetes mellitus examination report shows that the Veteran complained of dysthesias, burning, a pins and needles sensation, and numbness. The report notes diminished peripheral sensation from fingertips to wrists bilaterally. Strength and coordination were intact. The left hand was noted to have grip strength of 4/5, and to be fully functional. There was no interference with the activities of daily living. The Veteran's peripheral neuropathy was characterized as "mild." The Board finds that the Veteran's condition is not shown to have been manifested by moderate incomplete paralysis, such that an evaluation of 40 percent for the left upper extremity, or 30 percent for the right upper extremity, is warranted under DC 8512. The VA progress notes shows that the Veteran has weak hand grasps, right greater than left, but that there were no gross motor or sensory deficits. The October 2007 VA diabetes mellitus examination report shows that the Veteran had diminished peripheral sensation from fingertips to wrists bilaterally, with intake strength and coordination. Left hand grip strength was 4/5; his left hand was noted to be fully functional. There was no interference with the activities of daily living. The Veteran's peripheral neuropathy was characterized as "mild." Based on the foregoing, the Board finds that the evidence does not show that the Veteran's peripheral neuropathy of his left upper extremity, or right upper extremity, is manifested by symptomatology that more nearly approximates the criteria for an evaluation of 40 percent for the left upper extremity, or 30 percent for the right upper extremity, under DC 8512, and that the preponderance of the evidence is against an increased initial evaluation. The Board also concludes that the evidence does not demonstrate that either of the Veteran's upper extremities is shown to have been manifested by moderate incomplete neuritis or neuralgia, such that an increased initial evaluation is warranted under DC 8612 or DC 8712. Specifically, given the aforementioned medical evidence, to include the findings (or lack thereof) as to strength, sensation and limitation of range of motion, the Board finds that it is not shown that the Veteran's peripheral neuropathy of the left upper extremity, or right upper extremity, is shown to have been manifested by moderate incomplete neuritis or neuralgia of the lower radicular group, as contemplated by these diagnostic codes. Accordingly, an evaluation in excess of 20 percent is not warranted for the Veteran's peripheral neuropathy of the left upper extremity, or right upper extremity, under DC's 8512, 8612, and 8712. b. As of July 13, 2009 The relevant medical evidence is summarized as follows: A VA examination report, dated in July 2009, shows that the date of the examination was July 13, 2009. The Veteran complained of dropping objects, being unable to sign his name, and having a problem with fine manipulation, such as handling coins or fastening buttons. The Veteran was noted to be left-handed. He stated he had retired that year, that he had been a general laborer, and that his peripheral neuropathy had not affected his occupation. On examination, he did not have adequate sterognosis or proprioception. He was unable to distinguish between a quarter, nickel, or dime, and unable to distinguish between one to two point discrimination. Hot and cold discrimination was intact. Neuropathy was in evidence in all of his fingertips. The diagnosis was peripheral neuropathy of the bilateral upper and lower extremities. VA progress notes show that in November 2010, the Veteran complained of worsening hand pain. In April 2011, he complained of neck and left shoulder pain. He also reported tingling and numbness in his hands. He denied arm weakness or stiffness. He was noted to have cervical radiculopathy superimposed on osteoarthritis of the left shoulder. On examination, he had 5/5 muscle strength. Sensation was decreased. His diagnoses included DDD (degenerative disc disease) of the cervical spine, left shoulder osteoarthritis, left shoulder impingement, and diabetic polyneuropathy. In May 2011, he complained of neck and left upper extremity pain. He was noted to have 4/5 shoulder strength. In August 2011, he complained of left upper extremity pain radiating to the forearm and hand. The report notes positive paresthesias, and no myelopathy. Motor examination was normal, with normal muscle tone in the upper extremities, and no atrophy. Strength was 5/5 bilaterally in the upper extremities. Reflexes were 2/2 in the upper extremities. A VA examination report, dated in June 2011, notes a history of neuropathy in all four extremities, with current complaints of burning pain and fatigue in his hands. On examination, there was diminished sensation to temperature, monofilament testing, and fine touch in glove distribution. The diagnoses noted peripheral neuropathy of moderate severity involving the C6-7-8 dermatomal pattern roots of the cervical spine. The Board finds that the Veteran's condition is not shown to have been manifested by severe incomplete paralysis, such that an evaluation in excess of 40 percent for the left upper extremity, or 30 percent for the right upper extremity, is warranted under DC 8512. In July 2009, the Veteran was found not have adequate sterognosis or proprioception. He was unable to distinguish between a quarter, nickel, or dime, and unable to distinguish between one to two point discrimination. Hot and cold discrimination was intact. Neuropathy was in evidence in all of his fingertips. In April 2011, he complained of neck and left shoulder pain. He also reported tingling and numbness in his hands. He denied arm weakness or stiffness. He was noted to have cervical radiculopathy superimposed on osteoarthritis of the left shoulder. On examination, he had 5/5 muscle strength. Sensation was decreased. His diagnoses included degenerative disc disease of the cervical spine, left shoulder osteoarthritis, left shoulder impingement, and diabetic polyneuropathy. In May 2011, he was noted to have 4/5 shoulder strength. In August 2011, motor examination was normal, with normal muscle tone in the upper extremities, and no atrophy. Strength was 5/5 bilaterally in the upper extremities. In June 2011, he was found to have diminished sensation to temperature, monofilament testing, and fine touch in glove distribution. Based on the foregoing, the Board finds that the evidence does not show that the Veteran's peripheral neuropathy of his left upper extremity, or right upper extremity, is manifested by symptomatology that more nearly approximates the criteria for an evaluation of 50 percent for the left upper extremity, or 40 percent for the right upper extremity, under DC 8512, and that the preponderance of the evidence is against an increased initial evaluation. The Board also concludes that the evidence does not demonstrate that either of the Veteran's upper extremities is shown to have been manifested by severe incomplete neuritis or neuralgia, such that an increased initial evaluation is warranted under DC 8612 or DC 8712. Specifically, given the aforementioned medical evidence, to include the findings (or lack thereof) as to strength, sensation and limitation of range of motion, the Board finds that it is not shown that the Veteran's peripheral neuropathy of the left upper extremity, or right upper extremity, is shown to have been manifested by severe incomplete neuritis or neuralgia of the lower radicular group, as contemplated by these diagnostic codes. Accordingly, an evaluation in excess of 40 percent for the left upper extremity, or in excess of 30 percent for the right upper extremity, is not warranted under DC's 8512, 8612, and 8712. B. Bilateral Lower Extremities In April 2006, the RO granted service connection for peripheral neuropathy of the bilateral lower extremities. For each lower extremity, the RO assigned 10 percent evaluation, with an effective date of October 27, 2005. In August 008, the RO revised the effective dates for service connection to June 8, 2006. In April 2012, the RO assigned a separate 20 percent evaluation for the left lower extremity and the right lower extremity, effective June 28, 2011. The RO has evaluated the Veteran's bilateral lower extremity peripheral neuropathy as paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. Under DC 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the lower radicular group. A 20 percent rating is warranted for moderate incomplete paralysis. Id. A 40 percent rating is warranted for moderately severe incomplete paralysis. Id. Diagnostic Codes 8620 and 8720 address the criteria for evaluating neuritis and neuralgia of the lower radicular group, 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 8620, 8720 (2011). A. Prior to June 28, 2011 A VA diabetes mellitus examination report, dated in December 2005, shows that the Veteran was noted to report numbness of the feet. On examination, there was no poor coordination; coordination was normal. Gait was normal. There was no muscle weakness, or atrophy. There was sensory loss at the distal leg and foot. Reflexes were 2+ at the knees, and 1+ at the ankle, bilaterally. There was no motor loss. A VA neurological examination report, dated in December 2005, shows that the Veteran complained of foot numbness, and extreme fatigue. His numbness was aggravated by excessive standing or walking for long periods of time. On examination, strength was 5/5 bilaterally, with normal tone and bulk. He had significantly diminished vibratory sensation in his feet bilaterally, and somewhat diminished sensation to pain. Other sensory modalities were intact. Reflexes were 2/4 bilaterally, except for the ankles, which were 1+/4 bilaterally. A VA joint examination report, dated in December 2005, shows that the Veteran asserted that he intermittently required the use of a cane for walking. He complained of ankle swelling, and coldness and numbness of the feet. He stated that he could stand for 15 to 30 minutes, and that he could walk 1/4 mile. He reported having stiffness and weakness, but he denied having pain. On examination, gait was normal. There was swelling, and pain on motion. There was weakness, stiffness, and instability, but no giving way or pain. There were moderate daily flare-ups. The report notes that his bilateral ankle condition had no effects on grooming, toileting, and feeding, and "moderate" effects on dressing, bathing, traveling, recreation, sports, exercise, shopping, and chores. A VA examination report for the left foot, dated in December 2005, shows that on examination, there was no weakness, pain, or incoordination. There was no muscle atrophy or painful motion. Gait was normal. The Veteran reported that he was retired since 2005. VA progress notes show that in January and March of 2006, the Veteran was noted to report numbness in his feet, and not to have any gross motor or sensory deficits, however, sensory examination as measured by monofilament was also noted to be abnormal in both feet. Reports, dated in February an April of 2006, note a mild decrease in vibratory sensation. An October 2007 VA diabetes mellitus examination report shows that on examination, the Veteran had diminished peripheral sensation from toes to knees in a stocking distribution, bilaterally. Strength and coordination were intact. The examiner noted that the Veteran's peripheral neuropathy did not impeded his gait, rather, his obstructive lung disease did. There was no interference with the activities of daily living. The Veteran's peripheral neuropathy was characterized as "mild." A VA examination report, dated in July 2009, shows that the Veteran stated he had retired that year, that he had been a general laborer, and that his peripheral neuropathy had not affected his occupation. On examination, his gait was steady and unassisted, and he was able to walk briskly without any assistive devices. He did not have adequate sterognosis or proprioception. He was unable to distinguish between a quarter, nickel, or dime, and unable to distinguish between one to two point discrimination. Hot and cold discrimination was intact. Neuropathy was in evidence in all of his lower extremities from the mid-calf down to the toes, which was indicative of the L4-5 and S1-S2 dermatome path. The left hip and left knee were noted not to have pain. The diagnosis was peripheral neuropathy of the bilateral upper and lower extremities. VA progress notes show that in April 2011, the Veteran was noted to have a slightly waddling gait. He was able to ambulate without a device. In May 2011, he was noted to be able to ambulate without assistive devices. The Board finds that, prior to June 28, 2011, the Veteran's condition is not shown to have been manifested by moderate incomplete paralysis, such that an evaluation in excess of 10 percent for the left lower extremity, or the right lower extremity, is warranted under DC 8520. Briefly stated, in December 2005, while there were some findings of moderate symptoms, strength was 5/5 bilaterally, with normal tone and bulk. Gait was normal. There was significantly diminished vibratory sensation in his feet bilaterally, and somewhat diminished sensation to pain. Other sensory modalities were intact. Reflexes were 2/4 bilaterally, except for the ankles, which were 1+/4 bilaterally. VA progress notes dated in 2006 note an abnormal sensory examination in both feet, and a mild decrease in vibratory sensation. In October 2007, the Veteran had diminished peripheral sensation from toes to knees in a stocking distribution, bilaterally. Strength and coordination were intact. The examiner noted that the Veteran's peripheral neuropathy did not impede his gait. There was no interference with the activities of daily living. The Veteran's peripheral neuropathy was characterized as "mild." In July 2009, his gait was steady and unassisted, and he was able to walk briskly without any assistive devices. Based on the foregoing, the Board finds that the evidence does not show that the Veteran's peripheral neuropathy of his left lower extremity, or right lower extremity, is manifested by symptomatology that more nearly approximates the criteria for an evaluation of 20 percent for either the left lower extremity, or the right lower extremity, under DC 8520, and that the preponderance of the evidence is against an increased initial evaluation. The Board also concludes that the evidence does not demonstrate that either of the Veteran's lower extremities is shown to have been manifested by moderate incomplete neuritis or neuralgia, such that an increased initial evaluation is warranted under DC 8620 or DC 8720. Specifically, given the aforementioned medical evidence, to include the findings (or lack thereof) as to strength, sensation and limitation of range of motion, the Board finds that it is not shown that the Veteran's peripheral neuropathy of the left lower extremity, or right lower extremity, is shown to have been manifested by moderate neuritis or neuralgia of the lower radicular group, as contemplated by these diagnostic codes. Accordingly, an evaluation in excess of 10 percent for the left lower extremity, or the right lower extremity, is not warranted under DC's 8620, and 8720. B. As of June 28, 2011 A VA examination report, dated in June 2011, indicates that the date of the examination was June 28, 2011. The report notes a history of neuropathy in all four extremities, with current complaints of burning pain and fatigue in his hands. On examination, there was diminished sensation to temperature, monofilament testing, and fine touch in glove distribution. There was bilateral weakness in the gastronemius muscles. The diagnoses noted peripheral neuropathy of moderate severity of the sciatic nerve distribution in both lower extremities. An August 2011 VA progress note contains a notation of positive paresthesias, and no myelopathy. Motor examination was normal, with normal muscle tone in the lower extremities, and no atrophy. Strength was 5/5 bilaterally in the lower extremities. Reflexes were 2/2 in the lower extremities. Gait was sturdy and symmetric without antalgia or ataxia. He could perform heel and toe gait. The Board finds that, as of June 28, 2011, the Veteran's condition is not shown to have been manifested by moderately severe incomplete paralysis, such that an evaluation in excess of 20 percent for the left lower extremity, or the right lower extremity, is warranted under DC 8520. The June 2011 VA examination report shows that on examination, there was diminished sensation to temperature, monofilament testing, and fine touch in glove distribution. The August 2011 VA progress note shows that motor examination was normal, with normal muscle tone in the lower extremities, and no atrophy. Strength was 5/5 bilaterally in the lower extremities. Reflexes were 2/2 in the lower extremities. Gait was sturdy and symmetric without antalgia or ataxia. He could perform heel and toe gait. Based on the foregoing, the Board finds that the evidence does not show that the Veteran's peripheral neuropathy of his left lower extremity, or right lower extremity, is manifested by symptomatology that more nearly approximates the criteria for an evaluation of 40 percent for either the left lower extremity, or the right lower extremity, under DC 8520, and that the preponderance of the evidence is against an increased evaluation. The Board also concludes that the evidence does not demonstrate that either of the Veteran's lower extremities is shown to have been manifested by moderately severe incomplete neuritis or neuralgia, such that an increased evaluation is warranted under DC 8620 or DC 8720. Specifically, given the aforementioned medical evidence, to include the findings (or lack thereof) as to strength, sensation and limitation of range of motion, the Board finds that it is not shown that the Veteran's peripheral neuropathy of the left lower extremity, or right lower extremity, has been manifested by moderately severe neuritis or neuralgia of the lower radicular group, as contemplated by these diagnostic codes. Accordingly, an evaluation in excess of 20 percent for the left lower extremity, or the right lower extremity, is not warranted under DC's 8620, and 8720. C. Residuals, Hematoma, Left Thigh, with Limitation of Left Knee Flexion In September 1967, the RO granted service connection for hematoma of the left thigh with loss of use of left leg, evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5260. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011). In June 2006, the Veteran filed a claim for an increased rating. In November 2007, the RO denied the claim. The Veteran has appealed. Under 38 C.F.R. § 4.71a, DC 5260, a 20 percent rating is warranted for flexion limited to 30 degrees. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The only recorded ranges of motion for the left knee are found in a VA examination report, dated in October 2007, which shows that the left knee had flexion to 90 degrees, and a VA examination report, dated in September 2009, which shows that the left knee had flexion to 100 degrees. Given the foregoing, the Veteran's left knee is not shown to have flexion limited to 30 degrees, and the Board therefore finds that the criteria for a rating in excess of 10 percent under DC 5260 are not shown to have been met, and that the claim must be denied. The Board has considered the possibility of a higher rating under another diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Under DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. However, there is no competent evidence to show that the Veteran's left knee is productive of ankylosis. The Board further notes that the disability in issue is service connection for "residuals, hematoma, left thigh, with limitation of left knee flexion," which the RO has continuously rated under DC 5260. Under the circumstances, application of diagnostic codes for other knee disorders (i.e., other than DC 5260) is not appropriate. See 38 C.F.R. § 4.71a, DC 5257, 5258, 5261 and 5262. The Board points out, however, that even if it were to apply DC 5257 or 5261, that there is no evidence to show that the Veteran's left knee is productive of any recurrent subluxation or lateral instability - let alone such symptoms that are moderate in degree - or extension limited to 15 degrees, as required for a 20 percent rating. A higher evaluation is not warranted for functional loss at any time. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 38 Vet. App. 202 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). The December 2005 VA examination reports show that there was no poor coordination; coordination was normal. Gait was normal. There was no muscle weakness, atrophy, or motor loss. Strength was 5/5 bilaterally, with normal tone and bulk. VA progress notes show that in January and March of 2006, the Veteran was noted not to have any gross motor or sensory deficits. The October 2007 VA diabetes mellitus examination report shows that strength and coordination were intact. The July 2009 VA examination report shows that his gait was steady and unassisted, and he was able to walk briskly without any assistive devices. The left hip and left knee were noted not to have pain, inflammation or fatigue. The diagnosis notes a normal examination of the left hip and left knee. There was no left knee instability. An April 2011 VA progress notes indicates that the Veteran had a slightly waddling gait. He was able to ambulate without a device. In May 2011, he was noted to be able to ambulate without assistive devices. An August 2011 VA progress note states that motor examination was normal, with normal muscle tone in the lower extremities, and no atrophy. Strength was 5/5 bilaterally in the lower extremities. Gait was sturdy and symmetric without antalgia or ataxia. He could perform heel and toe gait. Given the foregoing, the evidence (or lack thereof) pertaining to such symptoms as neurological impairment, incoordination, loss of strength, atrophy, and other such findings, is not supportive of a higher rating on the basis of functional loss due to pain, and the Board finds that, when the range of motion in the left knee is considered together with the evidence of functional loss due to knee pathology, the evidence does not support a conclusion that the loss of motion in the left knee more nearly approximates the criteria for a rating in excess of 10 percent under DC 5260. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca; VAGCOPPREC 9-98. II. The Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in November 2005 and August 2011. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the issues of increased initial evaluations for peripheral neuropathy of the bilateral upper extremities, this appeal is based on a grant of service connection in November 2007. Where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess, 19 Vet. App. at 491, 493. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded examinations, and he declined to be re-examined during his December 2011 hearing. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs