Citation Nr: 1301950 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-06 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased evaluation for peripheral neuropathy, right lower extremity, rated 10 percent disabling prior to February 7, 2012, and as 20 percent disabling thereafter. 2. Entitlement to an increased evaluation for peripheral neuropathy, left lower extremity, rated 10 percent disabling prior to February 7, 2012, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions issued in September 2005, February 2007, and February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In November 2009, the Veteran testified at a Travel Board hearing before a member of the Board who has since retired from the Board. A transcript of that proceeding is of record. The Board informed the Veteran that he had a right to another Board hearing in a March 2012 letter, but he declined an additional hearing. When this case most recently was before the Board in May 2010, it was decided in part and remanded in part for additional development. The case since has been returned to the Board for further appellate action. During the course of this appeal, service connection for bilateral lower vascular calcification was granted. Since service connection was granted, the Veteran's appeal as to that issue has become moot. The Veteran has not disagreed with the assigned disability rating or the effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. Therefore, that matter has been resolved and is not in appellate status. In a subsequent February 2012 rating decision, 20 percent ratings for bilateral peripheral neuropathy, lower extremities, were granted; this did not satisfy the Veteran's appeal. Additional evidence was submitted by the Veteran following certification of the appeal to the Board. However, the Veteran's representative provided a waiver of RO consideration of the evidence in an October 2012 brief; the Board also notes that the evidence is duplicative of records already in the claims file. See 38 C.F.R. § 20.1304(c) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT Throughout the appeal, i.e., since August 26, 2005, the Veteran's service-connected peripheral neuropathy, right and left lower extremity, is manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Effectively since August 26, 2005, the criteria for a rating of 20 percent, but not higher, for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5017 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2012). 2. Effectively since August 26, 2005, the criteria for a rating of 20 percent, but not higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5017 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. The Merits of the Claims The Veteran contends that he is entitled to increased evaluations for his service-connected peripheral neuropathy due to the severity of his symptomatology. Law Disability ratings are determined by the application of a schedule of ratings, 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. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Here, as noted in the background discussion below, the effects of pain on use, functional loss, and incoordination were taken into account in assessing the level of paralysis of the Veteran's service-connected peripheral neuropathy. The Court has held that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, the Board will consider the claim as it was staged by the RO; that is, a rating of 10 percent prior to February 7, 2012, and a rating of 20 percent thereafter. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Peripheral neuropathy of the bilateral lower extremities is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). A note accompanying the rating criteria says, in part, that the term "incomplete paralysis," with this and other 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. Id. Historically, the Veteran filed his claim for service connection for peripheral neuropathy lower extremities in August 2005. The Board notes that in March 2005 the Veteran was afforded a VA examination for diabetes in which physical examination showed no motor loss or sensory loss, deep tendon reflexes were normal and there was normal ankle and knee jerk. The VA examiner diagnosed neuropathy of extremities due to spine condition and not secondary to diabetes. Service connection for peripheral neuropathy, right and left lower extremities, was granted in a February 2007 rating decision with 10 percent disability evaluations, effective August 26, 2005. The Veteran filed the instant claim for an increased rating in February 2007. VA treatment records from April 2007 showed leg pain suspected to be neuropathy, and the Veteran was treated with medication. Treatment records showed increased leg pain to the point of not being able to walk as well as increased medication for leg pain in March 2008. As noted above, the Veteran was afforded a Travel Board hearing before a member of the Board in November 2009 in which he testified that he experienced burning in his feet, huge pain in both lower extremities that would wake him up at night, difficulty walking, some tingling sensation, numbness, and tripping on his feet. The Veteran also noted that he almost quit working in 2001 but turned 62 and took his retirement. The Board in pertinent part remanded this case in May 2010 to afford the Veteran a VA examination. The Veteran was afforded a VA examination in July 2010 in which he described pain, numbness, and tingling in both lower extremities. He also reported weakness, fatigue, functional loss, and difficulty walking and standing. Physical examination showed no evidence of motor loss; normal strength in quadriceps and hamstrings bilaterally; normal strength in dorsiflexion and plantar flexion of feet; decreased pain sensation from the mid leg distally in a stocking-like manner. The diagnosis was peripheral neuropathy at least as likely as not secondary to diabetes mellitus. A private electroneuromyographic examination report in July 2010 showed that the Veteran complained of continuous slightly tingling sensation in his feet and difficulty feeling the difference between surfaces, an inability to feel very hot water with his feet, and some weakness in his legs. He stated that he could walk 300 to 400 feet but then must rest due to leg pain. Neurological examination showed mild weakness of bilateral foot and toe dorsal flexors, otherwise strength was 5 out of 5 throughout; sensory examination showed loss of pin sensation mid shins, reduced touch sensation in the dorsum feet, loss of cold sensation in the dorsum of the feet, and reduced vibratory sensation in the toes with normal stereognosis; gait was somewhat slowly performed and slightly antalgic. Nerve conduction testing of the right peroneal motor nerve recording over the extensor digitorum brevis muscle revealed an absent response. Right peroneal motor nerve testing recording over the tibialis anterior muscle revealed moderate slowing across the knee. Right tibial motor nerve testing revealed moderate slowing with a normal distal latency. Left peroneal motor nerve testing revealed moderate slowing in all segments with a prolonged distal latency. Right sural sensory response was of reduced amplitude and prolonged latency. Right superficial peroneal sensory response was absent. These findings were most consistent with moderately severe mixed axonal and demyelinating sensory motor peripheral neuropathy, and would be consistent with diabetic neuropathy, although other etiologies must be considered. There was also additional electrodiagnostic evidence of superimposed right peroneal nerve compression across the knee. Findings on neurologic examination and electrodiagnostic testing were consistent with peripheral neuropathy. It was noted that the peripheral neuropathy was likely due to diabetes, although other etiologies including vitamin B12 deficiency, paraproteinemia, and thyroid disease must be considered. His lower extremity symptoms were also suggestive of a lumbar spinal stenosis. The Veteran was afforded a VA examination in February 2012 in which he reported pain in his lower legs and feet continually since early 2000's, tingling in his feet and lower legs, and pain causing him to wake up at times. He denied general numbness. Moderate, constant pain was noted in the bilateral extremities. Physical examination showed moderate paresthesia and/or dysesthesias; full knee and ankle extension and flexion; light tough/monofilament testing was normal for the knees but decreased for the ankle/lower leg and foot/toes; position sense, vibration sensation, and cold sensation were decreased in the bilateral lower extremities; there was no muscle atrophy. The VA examiner diagnosed moderate incomplete paralysis of the right and left sciatic nerve and left and right femoral nerve (anterior crural). As noted above, in a February 2012 rating decision the disability ratings for bilateral lower extremity peripheral neuropathy were increased to 20 percent each, effective February 7, 2012. Based on a review of the evidence, the Board finds that effective throughout the pendency of this claim, the Veteran's level of impairment associated with service-connected peripheral neuropathy, right and left lower extremity, warrants 20 percent disability ratings. Although the March 2005 VA examination showed no motor loss or sensory loss, deep tendon reflexes were normal and there was normal ankle and knee jerk, the Veteran was not yet service-connected for his peripheral neuropathy at that time and the focus of the examination was not on the severity of his peripheral neuropathy. In fact, in depth electrodiagnostic studies were not performed. VA treatment records showed increased leg pain to the point of not being able to walk as well as increased medication for leg pain in March 2008. The Veteran testified in November 2009 that he experienced burning in his feet, huge pain in both lower extremities that would wake him up at night, difficulty walking, some tingling sensation, numbness, and tripping on his feet. The July 2010 VA examination showed no evidence of motor loss; normal strength in quadriceps and hamstrings bilaterally; normal strength in dorsiflexion and plantar flexion of feet; decreased pain sensation from the mid leg distally in a stocking-like manner. While the private electroneuromyographic examination report in July 2010 also noted only mild sensory examination, the electrodiagnostic findings were most consistent with a moderately severe mixed axonal and demyelinating sensory motor peripheral neuropathy. The report noted that other etiologies should be considered to explain the Veteran's symptoms, including a lumbar spine disability, which is not a service-connected disability, but also indicated that the Veteran's symptoms were likely due to his diabetes. The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Thus, the Board will resolve all doubt in the Veteran's favor that the symptoms reported on the private electrodiagnostic study were all attributable to his diabetic peripheral neuropathy. The VA examination in February 2012 showed moderate paresthesia and/or dysesthesias; position sense, vibration sensation, and cold sensation were decreased in the bilateral lower extremities; and there was moderate incomplete paralysis of the right and left sciatic nerve and left and right femoral nerve (anterior crural). The medical evidence for the time period throughout the claim, more or less reveals that the Veteran's level of impairment associated with service-connected peripheral neuropathy was more closely manifested by moderate incomplete paralysis. The evidence does not show that the peripheral neuropathy of either lower extremity equates to moderately severe incomplete paralysis, which is required for a 40 percent rating. The Veteran has reported difficulty walking due to leg pain and burning. The electrodiagnostic studies performed in July 2010 indicated moderately severe peripheral neuropathy; however, these studies also included the upper extremities. He also has significant decrease in sensation of the lower extremities, but these findings have been more mild. The VA examination report in February 2012 also specifically noted no more than moderate incomplete paralysis of the right and left sciatic and femoral nerves. Thus, in assessing the medical evidence as a whole, the severity of the Veteran's peripheral neuropathy does not more closely approximate the criteria for moderately severe incomplete paralysis, which warrants a 40 percent rating. For this reason, the Veteran's peripheral neuropathy of the bilateral lower extremities warrants ratings of 20 percent, but not higher; so to this extent, the Veteran's claims are granted. With respect to the effective date of the 20 percent ratings for the peripheral neuropathy of the bilateral lower extremities, as this claim stems from an appeal of a rating decision granting service connection, the effective date provisions for service connection claims apply. Under 38 C.F.R. § 3.400(b)(2)(i) the effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later, will be the effective date. The Veteran was discharged from active duty in 1969, and the claim on appeal was not received by the RO until August 26, 2005. Thus, as his claim on appeal was not filed within a year following his separation from active duty, the effective date is the later of the two, the date of the claim or the date entitlement arose. The RO apparently determined that entitlement to service connection arose coincident with the Veteran's claim on August 26, 2005, and thus assigned the effective date of the claim, August 26, 2005, as the date service connection was warranted. The Board will not disturb that finding. For these reasons and bases, the Board finds that the evidence of record supports the higher 20 percent rating for this disability from an earlier effective date, that is, as of August 26, 2005, rather than just as of February 7, 2012. To the extent that any further increase in compensation is desired by the Veteran, however, it is not established. Extraschedular Consideration The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). The Rating Schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extra-schedular rating may be assigned. See 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran reported that he has functional impairment due to his peripheral neuropathy in the lower extremities including difficulty walking and standing. Diagnostic Code 8520 contemplates incomplete paralysis of the sciatic nerve and moderate incomplete paralysis warrants a 20 percent rating, which is assigned by the Board for the entire appeal period. Thus, his symptoms associated with his disability do not denote an exceptional or unusual disability picture. The symptoms are not shown to cause any impairment that is not already contemplated by the applicable rating criteria. For these reasons, referral for consideration of an extra-schedular rating is not warranted for this claim. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (wherein the Court found that when an extra-schedular grant may be in order, that issue must be referred, pursuant to 38 C.F.R. § 3.321, to those "officials who possess the delegated authority to assign such a rating in the first instance"). See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU Consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU [total disability rating for compensation based on individual unemployability] is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran does not allege, and the evidence does not show, that he was unable to work due his service-connected disabilities. On the contrary, the Veteran testified before a member of the Board that that he almost quit working in 2001 but turned 62 and took his retirement. Accordingly, the Board finds that a claim for TDIU is not raised by the record. II. The Veterans Claims Assistance Act of 2000 The VCAA describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in March and September 2006, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Mayfield, supra.) The RO also provided a statement of the case (SOC) and supplemental statements of the case (SSOC) reporting the results of its reviews of the issues on appeal and the text of the relevant portions of the VA regulations. Regarding VA's duty to assist, the RO obtained the Veteran's post-service medical records and secured examinations in furtherance of his claims. VA has no duty to inform or assist that was unmet. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate for rating purposes, as they consider all of the pertinent evidence of record, to include the Veteran's medical history, his statements, and provide the medical information necessary to apply the appropriate rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the rating question issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). ORDER Entitlement to an increased evaluation of 20 percent, but not higher, for peripheral neuropathy, right lower extremity, is granted, effective August 26, 2005, subject to the rules governing payment of monetary benefits. Entitlement to an increased evaluation of 20 percent, but not higher, for peripheral neuropathy, left lower extremity, is granted, effective August 26, 2005, subject to the rules governing payment of monetary benefits. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs