Citation Nr: 1305873 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 05-02 839 ) DATE ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the right upper extremity associated with diabetes mellitus due to herbicide exposure. 2. Entitlement to an initial evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the left upper extremity associated with diabetes mellitus due to herbicide exposure. 3. Entitlement to an initial evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the right lower extremity associated with diabetes mellitus due to herbicide exposure prior to September 22, 2009 and 20 percent beginning on that date. 4. Entitlement to an initial evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the left lower extremity associated with diabetes mellitus due to herbicide exposure prior to September 22, 2009 and 20 percent beginning on that date. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the RO. In a decision promulgated in April 2011, the Board assigned an increased rating of 100 percent for the service-connected diabetes mellitus. In a rating decision in May 2011, the RO assigned the increased rating of 100 percent for the service-connected diabetes mellitus with bilateral retinopathy, a left eye cataract and hypertension, effective on August 26, 2005. In a rating decision in September 2012, the RO increased the initial rating of the service-connected peripheral neuropathy of the right lower extremity and left lower extremity to 20 percent effective on September 22, 2009. In December 2006, in June 2009, and in April 2011 the Board remanded the claims for additional development. A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. The service-connected peripheral neuropathy of the right lower extremity currently is shown to be manifested by a disability picture that more closely resembles that of moderate incomplete paralysis of both the sciatic and femoral nerves; more than mild incomplete paralysis of the sciatic nerve was not demonstrated earlier than September 22, 2009. 2. The service-connected peripheral neuropathy of the left lower extremity currently is shown to be manifested by a disability picture that more closely resembles that of moderate incomplete paralysis of both the sciatic and femoral nerves; more than mild incomplete paralysis of the sciatic nerve was not demonstrated earlier than September 22, 2009. 3. The service-connected peripheral neuropathy of the right upper extremity is not shown to have been productive of more than mild incomplete paralysis. 4. The service-connected peripheral neuropathy of the left lower extremity is not shown to have been productive of more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 20 percent for the service-connected peripheral neuropathy of the right lower extremity based on involvement of the sciatic nerve are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8520 (2012). 2. The criteria for the assignment of a rating in excess of 20 percent for the service-connected peripheral neuropathy of the left lower extremity based on involvement of the sciatic nerve are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8520 (2012). 3. The criteria for the assignment of a separate rating of 20 percent, but not higher for the service-connected peripheral neuropathy of the right lower extremity based on involvement of the femoral nerve are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8526 (2012). 4. The criteria for the assignment of a separate rating of 20 percent, but not higher for the service-connected peripheral neuropathy of the left lower extremity based on involvement of the femoral nerve are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8526 (2012). 5. The criteria for the assignment of a rating in excess of 10 percent for the service-connected peripheral neuropathy of the right lower extremity prior to September 22, 2009 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8515 (2012). 6. The criteria for the assignment of a rating in excess of 10 percent for the service-connected peripheral neuropathy of the left lower extremity prior to September 22, 2009 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8515 (2012). 7. The criteria for the assignment of a rating in excess of 10 percent for the service-connected peripheral neuropathy of the right upper extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8515 (2012). 8. The criteria for the assignment of a rating in excess of 10 percent for the service-connected peripheral neuropathy of the left upper extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding defects in the timing or content of the notice if such are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter that explained how VA could help him obtain evidence in support of his claim. The letter also informed the Veteran that in order to receive a higher rating for a service-connected disability, he needed to show that it got worse, and explained how VA assigns ratings and effective dates for service connected disabilities. He was also sent a letter that explained how disability ratings are assigned. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, and written statements from the Veteran. He also was afforded several adequate examinations. The January 2012 examination was in substantial compliance with the instructions set forth in the remand by the Board. For these reasons, the Board concludes that VA has satisfied its duties under VCAA in this case. Increased Rating Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). In connection with a VA examination in July 2005, the Veteran was noted to have stroke residuals involving the left upper and lower extremities and paraesthesias of both hands and feet. He had decreased sensation in the left upper and lower extremities secondary to the previous CVA with left hemiparesis. Motor strength was normal for the upper and lower extremities. He had decreased sensation to sharp-dull in the foot and calf and just to the distal forearm on the right. In an October 2006 statement, a private physician noted that the Veteran had profound peripheral neuropathy. In connection with a medical examination performed in December 2006, it was noted that the Veteran had peripheral neuropathy of the lower extremities. The deep tendon reflexes were noted to 2+ at the level of the knees. Peripheral sensation was noted to be intact in the upper extremities with a little questionable sharp and dull in the finger tips of the right hand. He had no painful stimuli in the left thigh, calf, foot or toes on the left. He had some pain sensation in the right thigh, but none in the calf, foot or toes on the right. Sharp and dull sensation was absent in these area. In connection with a VA examination in July 2008, the Veteran was noted to have developed numbness and tingling in the legs. It was noted that EMG studies had shown a complete loss of peripheral nerve function in the entire left leg and from knee down on the right. On examination, the Veteran was noted to have decreased sensation to pinprick of the entire left leg and from the knee down on the right. There was absent sensation to vibratory stimulation of both feet. The impression was that of peripheral neuritis of the entire left leg and of the right lower leg. In connection with an examination in July 2009, the Veteran was note to have neurologic symptoms that included loss of strength and tingling/numbness. On examination, the Veteran was noted to have a loss of coordination in the left lower extremity due to a previous history of a cerebrovascular accident. He had neuritis of the left upper extremity with signs and symptoms due to the previous cerebrovascular accident and diabetic neuropathy and generalized weakness. The reflexes were noted to be diminished at 1+. The examiner noted that there was paralysis and generalized weakness of the left leg. The right leg was noted to have no neuritis, neuralgia or paralysis. The patellar reflexes were diminished at 1+. The Achilles reflexes were absent. The left upper and lower extremities were noted to have neuritis and paralysis with signs and symptoms of a left-sided cerebrovascular accident and diabetic neuropathy. The pinprick test was abnormal as to both arms. Position sense and two point discrimination were noted to be abnormal with diminished sensation for each upper and lower extremity. The pertinent diagnosis was that of diabetic neuropathy of each extremity. In connection with a VA examination in September 2009, the Veteran reported having suffered a cerebrovascular accident in July 1998 with resulting numbness and tingling involving the left side of the face, left arm and left leg. It was noted that he had problems with neuropathic symptoms in upper and lower extremities since about 1980-1981 starting in the hands and feet. His symptoms progressed up the legs to just below the knees in a stocking glove-like loss of sensation. He continued to have some stinging and burning pain of the left side of the face and left foot drop that had complicated his walking due to a flapping-type gait. The stinging was constant in the feet and left hand and came and went in the right hand. On examination, vibratory sensation was impaired in both upper and lower extremities. Pinprick was impaired to the knees in the lower extremities and was intact in the right arm. The left arm had slightly reduced pinprick. Monofilament testing was decreased in both upper extremities and absent from the knees to the toes with a negative Babinski in the legs. His left hand grip was reduced by about 25 % when compared to the right. Flexion of the wrists was mildly reduced on the right and moderately reduced on the left. There was minimal atrophy on the left side compared to the right. Flexion of either knee was not weakened extensively on either side. The diagnoses at that time included bilateral peripheral neuropathy of the lower extremities with greater sensation loss involving the left upper and lower extremities. There was noted to be some residual numbness involving the left side of the face with weakness of the left arm, hand and foot and foot drop on the left due to the CVA/TIA event. The VA examination in January 2012 noted that the Veteran had symptoms attributable to diabetic peripheral neuropathy. However, the examiner noted that the Veteran had no symptoms of constant pain involving any of the extremities. He had no intermittent pain, paresthesias or dysthesias or numbness of either upper extremity. The examiner noted mild intermittent pain, but no paresthesias or dysthesias of each lower extremity. He had severe numbness of the lower extremities. The Veteran's strength in each extremity was noted to be 5/5. Light touch testing was noted to be normal for the upper extremities and at the level of the thigh for each lower extremity. Sensitivity to light touch was noted to be absent at the level of the ankle/lower leg and foot/toes for each lower extremity. Position sense and vibration sensation was noted to be normal in the upper extremities and to be absent in each lower extremity. There was no muscle atrophy noted. The VA examiner noted that the Veteran had trophic changes attributable to diabetic neuropathy in the form of shiny, thin, dry eczematous skin and hypertrophic nails with apparent fungal debris. The examiner added that the Veteran had no upper extremity diabetic peripheral neuropathy. The Veteran was noted to have diabetic peripheral neuropathy manifested by moderate incomplete paralysis involving the sciatic nerve and the femoral nerve (anterior crural) for each lower extremity. After carefully reviewing the entire record, the Board finds that the service-connected diabetic peripheral neuropathy is shown to be productive of a disability picture that more nearly approximates that moderate incomplete paralysis of both the sciatic and femoral nerves of the lower extremities based on the findings recorded in connection with the recent VA examination. Hence, more than the currently assigned 20 percent rating for the service-connected peripheral neuropathy based on involvement of the sciatic nerve of either lower extremity is not assignable. However, based on these findings, a separate 20 percent rating is assignable for service-connected peripheral neuropathy based on involvement of the femoral nerve of each lower extremity. To the extent that the findings prior to September 2009 do not show more than sensory involvement, a rating higher than 10 percent for the service-connected peripheral neuropathy of either lower extremity is not assignable prior to September 2009. Moreover, the recent VA examination did not identify any findings referable to the service-connected diabetic peripheral neuropathy that would be consistent with more than mild incomplete paralysis of any nerve of either upper extremity. While the Veteran is shown to experience additional neurologic impairment due to the previous left-sided cerebrovascular accident, including a left foot drop, these disabling manifestations are not considered in the rating assigned for the service-connected diabetic peripheral neuropathy alone. Accordingly, on this record, an increased rating in excess of 10 percent is not assignable for the diabetic peripheral neuropathy on either upper extremity. ORDER An increased rating in excess of 10 percent prior to September 22, 2009 or in excess of 20 percent beginning on that date for the service-connected peripheral neuropathy of the right lower extremity on the basis of involvement of the sciatic nerve is denied. A separate rating of 20 percent, but no more for the service-connected peripheral neuropathy of the right lower extremity on the basis of involvement of the femoral nerve is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased rating in excess of 10 percent prior to September 22, 2009 or in excess of 20 percent beginning on that date for the service-connected peripheral neuropathy of the left lower extremity on the basis of involvement of the sciatic nerve is denied. A separate rating of 20 percent, but no more for the service-connected peripheral neuropathy of the left lower extremity on the basis of involvement of the femoral nerve for the period of the appeal is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased rating in excess of 10 percent for the service-connected peripheral neuropathy of the right upper extremity is denied. An increased rating in excess of 10 percent for the service-connected peripheral neuropathy of the left upper extremity is denied. STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs