Citation Nr: 1306133 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-37 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type 2, with mild diabetic nephropathy. 2. Entitlement to a separate compensable rating for peripheral neuropathy, right lower extremity, for the period from May 31, 2006, to August 16, 2012; and a rating in excess of 10 percent for the period on and after August 17, 2012. 3. Entitlement to a separate compensable rating for peripheral neuropathy, left lower extremity, for the period from May 31, 2006, to August 16, 2012; and a rating in excess of 10 percent for the period on and after August 17, 2012. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1969. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO). FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran's diabetes mellitus is manifested by symptoms requiring insulin, an oral hypoglycemic agent, a restricted diet, regulation of activities, diabetic nephropathy, and diabetic peripheral neuropathy. 2. The medical evidence of record shows that the Veteran's bilateral peripheral neuropathy of the lower extremities is manifested by mild incomplete paralysis in each leg throughout the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for diabetes mellitus, type 2, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for a rating of 40 percent for diabetes mellitus, type 2, for the period on and after August 17, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.119, Diagnostic Code 7913 (2012). 3. The criteria for a separate initial rating of 10 percent for peripheral neuropathy, right lower extremity, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.119, 4.124a, Diagnostic Codes 7913, 8520 (2012). 4. The criteria for a separate initial rating of 10 percent for peripheral neuropathy, left lower extremity, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.119, 4.124a, Diagnostic Codes 7913, 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in July 2007, July 2008, and May 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained adequate examinations with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The appeal of the Veteran's diabetes mellitus and peripheral neuropathy claims is based on the assignment of an initial evaluation following an initial award of service connection for these disorders. As such, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial ratings were assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. Service connection for diabetes mellitus, type 2, with mild non-disabling bilateral peripheral neuropathy of the toes was granted by a March 2008 rating decision and a 20 percent rating was assigned under 38 C.F.R. § 4.119, Diagnostic Code 7913, effective May 31, 2006. Subsequently, an October 2012 rating decision continued the Veteran's 20 percent rating for diabetes mellitus, type 2, but separated out the Veteran's peripheral neuropathy symptoms and assigned a 10 percent rating for each lower extremity under 38 C.F.R. § 4.119, Diagnostic Code 7913-8520, effective August 17, 2012. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that diabetes mellitus, under Diagnostic Code 7913, was the service-connected disorder, and paralysis of the sciatic nerve, under Diagnostic Code 8520, was a residual condition. A May 2005 private medical examination report stated that the Veteran had insulin-dependent diabetes but was able to lose weight and was "eating healthy." A November 2006 private medical report stated that, on physical examination, a non-focal, ten point foot examination showed no sensory deficits. The diagnoses included diabetes mellitus, type 2. A January 2007 private medical report stated that, on physical examination, a non-focal, ten point foot examination showed no sensory deficits. The diagnoses included diabetes mellitus, type 2. A February 2007 private eye examination report stated that the Veteran had a seven to eight year history of diabetes mellitus, type 2, and was on insulin. After optical examination, the assessment stated that the Veteran had diabetes mellitus, type 2, without ocular manifestations. In a July 2007 VA diabetes mellitus examination report, the Veteran reported that his diabetes was treated with oral medication, insulin, and dietary modification. He denied having had any hypoglycemia which required hospitalization. The Veteran was reported to not have any medically indicated limitation or restriction of activities due to diabetes. He also did not have any diabetic ketoacidosis, progressive loss of weight, or progressive loss of strength. The Veteran did not have any bowel or bladder problems, diabetic eye disease, kidney problems, or skin disorders. He reported that he got tingling in his feet on a daily basis for at least a few minutes, though he denied other symptoms suggestive of peripheral neuropathy. On physical examination, the Veteran did not have any foot ulcers, diabetic skin diseases, or amputations. On neurological examination, no abnormalities were noted, including on sensory testing of the extremities. The diagnoses were type 2 diabetes which was controlled with insulin and an oral agent, with some dietary modification but not medically indicated limitation or restriction of activities; and mild diabetic peripheral neuropathy on the toes, bilaterally. The examiner opined that the Veteran's peripheral neuropathy was "causing absolutely no disability or impairment for him," and did not require any treatment or cause any problems. The Veteran's microalbumin to creatinine ratio was normal. A March 2008 VA outpatient medical report noted that the Veteran had diabetes mellitus and was taking insulin. The Veteran denied experiencing unexplained weight loss. On physical examination, the Veteran's extremities had intact light-touch sensation. The impression included diabetes mellitus. On diagnostic testing, the Veteran albumin level was 4.3, which was in the normal range. An April 2008 VA outpatient eye consultation report stated that, after optical examination, the assessment was diabetes mellitus, type 2, with insulin but without diabetic retinopathy. An August 2008 VA hypertension examination report stated that, on physical examination, the Veteran's pinprick sensation was intact in all four extremities. After diagnostic examination, the examiner stated that the Veteran's creatinine was normal and although there was evidence of microalbuminuria, it was first noted in March 2008 with a normal microalbumin to creatinine ration found in July 2007. For that reason, the examiner opined that the Veteran's hypertension was a separate issue which was not secondary to his diabetes mellitus, type 2. An August 2008 VA outpatient medical report noted that the Veteran had diabetes mellitus and was taking insulin. The Veteran denied experiencing unexplained weight loss. On physical examination, the Veteran's extremities had intact light-touch sensation. The impression included diabetes mellitus. The plan stated that the Veteran was encouraged to take daily moderate exercise. A March 2009 VA spine examination report stated that, on physical examination, the Veteran had full sensation from his head to his toe. An April 2009 VA outpatient eye consultation report stated that, after optical examination, the assessment was diabetes mellitus, type 2, without retinopathy. An August 2009 VA outpatient medical report noted that the Veteran had diabetes mellitus and was taking insulin. The Veteran denied experiencing unexplained weight loss. Upon physical examination, the Veteran's extremities had intact light-touch sensation. The impression included diabetes mellitus which needed "fine tuning." The plan stated that the Veteran was instructed to increase his insulin. The Veteran was referred to a weight management treatment program. A March 2010 VA outpatient eye consultation report stated that, after optical examination, the assessment was diabetes mellitus, type 2, which was controlled with oral medications and insulin, and without diabetic retinopathy, bilaterally. A September 2010 VA outpatient medical report noted that the Veteran had diabetes mellitus and was taking insulin. The Veteran reported that he was "feeling very well overall," was watching his dietary intake, and had lost five pounds over the previous year. On physical examination, the Veteran's extremities had intact light-touch sensation. The impression included diabetes mellitus under good control. A September 2011 VA outpatient medical report noted that the Veteran had diabetes mellitus and was taking insulin. The Veteran reported that he was really feeling good. After physical examination, the impression included diabetes mellitus that was in fair control, with mild hypoglycemia consistently in the mornings. The plan stated that the Veteran declined referral to a weight management program. A second September 2011 VA outpatient medical report stated that the Veteran's the Veteran albumin level was 4.6, which was in the normal range. A third September 2011 VA outpatient medical report stated that diabetes sensory foot examination, by monofilament, was normal. An August 17, 2012, VA diabetes mellitus examination report gave a diagnosis of diabetes mellitus, type 2, and diabetic nephropathy. The report stated that the Veteran's diabetes was treated by a restricted diet, a prescribed oral hypoglycemic agent, and prescribed insulin with more than one injection per day. He was reported to require regulation of activities, in that he stopped walking after a couple blocks due to his legs feeling tired. The Veteran was reported to visit his diabetic care provider for episodes of ketoacidosis of hypoglycemic reactions less than twice per month, and was reported to have had no hospitalizations for ketoacidosis or hypoglycemia in the previous 12 months. He was reported to not have any progressive unintentional weight loss or loss of strength which was attributable to diabetes mellitus. The Veteran was also reported to have diabetic peripheral neuropathy and nephropathy or renal dysfunction, but not retinopathy. The examiner opined that it was not at least as likely as not that the Veteran's diabetes had caused or aggravated any other disorder. It was reported that the Veteran's diabetes mellitus had a functional impact on his ability to work, in that he had to "get up and down from the desk a number of times each day" and experienced leg tiredness. The Veteran denied missing work due to diabetes. Laboratory testing showed that the Veteran had a microalbumin creatinine ration of 88, with previous readings normal. The Veteran's glomerular filtration rate was 113, while his blood urea nitrogen/creatinine were normal. The examiner opined that the Veteran's diabetic nephropathy was mild in nature and the level of microalbumin excretion found was not expected to cause or aggravate hypertension. The examiner opined that the Veteran's blood pressure and previous microalbumin creatinine ratios were normal back to 2008. An August 17, 2012, VA peripheral neuropathy examination report gave a diagnosis of mild diabetes mellitus neuropathy. The Veteran complained of numbness of the shins and toes, particularly in the last year. He stated that it occurred mainly as an intermittent tingling sensation. The Veteran was reported to experience mild intermittent pain in both legs, moderate paresthesias and/or dyesthesias in both legs, and moderate numbness in both legs. The Veteran also reported that his feet felt cold most of the time. Physical examination revealed that the Veteran had normal muscle strength in all joints, normal reflexes in all joints, and normal response to light touch/monofilament testing in all areas except the bilateral feet and toes. There was normal position and vibration sense in all extremities, except the left leg where vibration sensation was decreased. The Veteran did not have muscle atrophy or trophic changes attributable to diabetic peripheral neuropathy. The examiner stated that these symptoms resulted in incomplete paralysis of the bilateral sciatic nerves, to a mild severity in each leg. It was reported that the Veteran's diabetic peripheral neuropathy had a functional impact on his ability to work, in that his legs felt numb and tired especially when he was walking, and he was limited to walking a couple of blocks. An October 2012 VA outpatient medical report noted that the Veteran had diabetes mellitus and was taking insulin. The Veteran reported that he felt "well overall." After physical examination, the impression included diabetes mellitus under good control. The plan included a recommendation for daily exercise. A second October 2012 VA outpatient medical report stated that diabetes sensory foot examination, by monofilament, was normal. A third October 2012 VA outpatient medical report stated that the Veteran's albumin level was 4.5, which was in the normal range. Diabetes Mellitus The Schedule provides that assignment of a 20 percent rating is warranted for diabetes mellitus requiring insulin and a restricted diet, or; an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 at Note 1. The medical evidence of record shows that the Veteran's diabetes mellitus is manifested by symptoms requiring insulin, an oral hypoglycemic agent, a restricted diet, regulation of activities, diabetic nephropathy, and diabetic peripheral neuropathy. The medical evidence of record shows that the Veteran's diabetes mellitus has required insulin, an oral hypoglycemic agent, and a restricted diet throughout the entire time period on appeal. In addition, the August 2012 VA diabetes mellitus examination report stated that the Veteran required regulation of activities to manage his diabetes mellitus. Accordingly, a 40 percent rating is warranted for the Veteran's diabetes mellitus, type 2, for the period on and after August 17, 2012. However, a rating in excess of 20 percent is not warranted for the period prior to August 17, 2012, as the medical evidence of record does not show that the Veteran's diabetes mellitus required regulation of activities before that date. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. The medical evidence of record does not show that the Veteran was ever instructed by a physician to regulate or restrict his physical activities due to problems controlling his blood sugar prior to August 17, 2012. The July 2007 VA diabetes mellitus examination report specifically stated that the Veteran did not have any medically indicated limitation or restriction of activities. In addition, in August 2008, the Veteran was encouraged to take daily moderate exercise and in August 2009, the Veteran was referred to a weight management treatment program. Accordingly, the preponderance of the evidence of record does not show that the Veteran's activities were regulated as a result of his diabetes mellitus prior to August 17, 2012. As such, the Veteran's service-connected diabetes mellitus, type 2, does not meet the criteria for a rating in excess of 20 percent under the provisions of Diagnostic Code 7913, at any point prior to August 17, 2012. In addition, a rating in excess of 40 percent is not warranted for the period on and after August 17, 2012, as there is no evidence of record that the Veteran has ever had episodes of ketoacidosis or hypoglycemic reactions which required one or more hospitalizations per year or twice-a-month or more frequent visits to a diabetic care provider. The Board has considered rating the Veteran's service-connected diabetes mellitus, under all appropriate diagnostic codes. In this respect it is noted that the medical evidence of record shows that the Veteran's service-connected diabetes mellitus has caused or aggravated diabetic nephropathy and diabetic peripheral neuropathy. With respect to the Veteran's diabetic peripheral neuropathy, the ratings assigned for that disability are discussed separately below. With respect to the Veteran's diabetic nephropathy, renal dysfunction warrants a 0 percent rating with albumin and casts with history of acute nephritis; or, where hypertension is non-compensable under Diagnostic Code 7101. Renal dysfunction warrants a 30 percent rating with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension is at least 10 percent disabling under Diagnostic Code 7101. Renal dysfunction warrants a 60 percent rating with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension is at least 40 percent disabling under Diagnostic Code 7101. 38 C.F.R. § 4.115a (2012). In this case, the medical evidence of record does not show that the Veteran has ever met the criteria for a compensable rating for diabetic nephropathy. While microalbuminuria was noted on multiple medical reports, there is no evidence of record that the Veteran's microalbuminuria has ever advanced to albuminuria, let alone been constant or recurring with hyaline and granular casts or red blood cells. In addition, there is no evidence of record that the Veteran experiences edema as the result of his diabetes mellitus. While the Veteran does have a current diagnosis of hypertension, the August 2008 VA hypertension examination report specifically stated that the Veteran's hypertension was a separate issue which was not secondary to his diabetes mellitus, type 2. Accordingly, the Veteran's hypertension symptoms are not for consideration in determining whether a separate compensable rating is warranted for his diabetic nephropathy. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). As such, the medical evidence of record shows that the Veteran's diabetic nephropathy does not warrant a compensable rating at any point during the period on appeal. 38 C.F.R. § 4.115a (2012). Accordingly, the Veteran's diabetic nephropathy is considered part of the diabetic process and a separate rating for diabetic nephropathy as a residual of diabetes mellitus is not warranted. 38 C.F.R. § 4.119, Diagnostic Code 7913 at Note 1. This claim has also been reviewed with consideration of whether further staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's diabetes mellitus, type 2, symptoms, the evidence shows no distinct periods of time when his symptoms have varied to such an extent that a rating in excess of the ratings assigned herein would be warranted for under any diagnostic code. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.344 (2012); Fenderson, 12 Vet. App. 119. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). 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. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. When service-connected disability affects employment in ways not contemplated by the rating schedule, § 3.321(b)(1) is applicable. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disabilities rating for diabetes mellitus, type 2, inadequate. The Veteran's diabetes mellitus, type 2, is evaluated under to 38 C.F.R. § 4.119, Diagnostic Code 7913, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. As noted above, the Veteran's diabetes mellitus is manifested by symptoms requiring insulin, an oral hypoglycemic agent, a restricted diet, regulation of activities, diabetic nephropathy, and diabetic peripheral neuropathy. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the disabilities ratings assigned herein for his diabetes mellitus, type 2. Ratings in excess of the ratings assigned herein are provided for certain manifestations of diabetes mellitus, type 2, but the medical evidence reflects that those manifestations are not present in this case. The criteria for the ratings assigned herein for the Veteran's diabetes mellitus, type 2, more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently schedular evaluations assigned herein are adequate and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board would like to also point out that while this service-connected disorder does cause some functional impact on the Veteran's occupation, there is no evidence and the Veteran has not contended that this disorder precludes him from engaging in or maintaining gainful employment. Consequently, the Board does not find that the record has raised an implied claim for a total disability rating based on individual unemployability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the medical evidence of record does not show findings that meet the criteria for a rating in excess of 20 percent prior to August 17, 2012, or 40 percent on and after August 17, 2012, the doctrine is not for application. Therefore, the claim for a rating in excess of 20 percent prior to August 17, 2012, and in excess of 40 percent on and after August 17, 2012, is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Peripheral Neuropathy Under Diagnostic Code 8520, incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation when it is mild in degree. A 20 percent rating is warranted for incomplete paralysis which is moderate in degree. A 40 percent rating is warranted for incomplete paralysis which is moderately severe in degree. 38 C.F.R. § 4.124a, Diagnostic Code 8520. With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular 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. 38 C.F.R. § 4.124a (2012). The medical evidence of record shows that the Veteran's bilateral peripheral neuropathy of the lower extremities is manifested by mild incomplete paralysis in each leg throughout the entire period on appeal. Initially, the Board notes that no neurological abnormalities of the lower extremities were found on examination prior to the August 2012 VA peripheral neuropathy examination. However, the Veteran reported experiencing neurological symptoms long before this date. Specifically, in the July 2007 VA diabetes mellitus examination report the Veteran reported that he got tingling in his feet on a daily basis for at least a few minutes. On the basis of this report, the examiner gave a diagnosis of mild diabetic peripheral neuropathy on the toes, bilaterally. While no neurological abnormalities were noted on physical examination for several years, the Veteran is competent to report that he experienced tingling in his feet on a daily basis. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology). The Board also finds the Veteran's statements regarding his neuropathic symptoms to be credible, as they were considered sufficient to warrant a diagnosis of diabetic peripheral neuropathy in July 2007, and neurological abnormalities were subsequently found on examination in August 2012. Accordingly, separate initial ratings of 10 percent are warranted for both the Veteran's right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy. 38 C.F.R. § 4.119, Diagnostic Code 7913 at Note (1). However, a 20 percent rating is not warranted at any point during the period on appeal because there is no medical evidence of record which characterizes the Veteran's bilateral lower extremity peripheral neuropathy symptoms as greater than mild in degree. There are only two medical reports of record which comment on the severity of the Veteran's peripheral neuropathy symptoms. The July 2007 VA diabetes mellitus examination report specifically diagnosed the Veteran's bilateral diabetic peripheral neuropathy as being "mild." Similarly, the August 2012 VA peripheral neuropathy examination report stated that the Veteran's peripheral neuropathy symptoms resulted in incomplete paralysis of the bilateral sciatic nerves, which was mild in severity in each leg. The Board notes that the August 2012 VA peripheral neuropathy examination report also stated that the Veteran had moderate paresthesias and/or dyesthesias and numbness in both legs. However, the examiner took these symptoms into account in determining that the overall severity of the symptoms was mild. Accordingly, a rating in excess of 10 percent is not warranted for either of the Veteran's peripheral neuropathy disabilities at any point during the period on appeal. This claim has also been reviewed with consideration of whether staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's peripheral neuropathy symptoms, the evidence shows no distinct periods of time when his symptoms have varied to such an extent that a rating in excess of the ratings assigned herein would be warranted for under any diagnostic code. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.344; Fenderson, 12 Vet. App. 119. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability ratings for his bilateral lower extremity peripheral neuropathy inadequate. The Veteran's bilateral lower extremity peripheral neuropathy was evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology for each lower extremity. As noted above, the Veteran's bilateral lower extremity peripheral neuropathy is manifested by mild incomplete paralysis in each leg. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the disability ratings assigned herein for his right and left lower extremity peripheral neuropathy. Ratings in excess of the ratings assigned herein are provided for certain manifestations of right and left lower extremity peripheral neuropathy, but the medical evidence reflects that those manifestations are not present in this case. The criteria for 10 percent ratings for each of the Veteran's right and left lower extremity peripheral neuropathy more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the schedular ratings assigned herein are adequate and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. § 4.124a, Diagnostic Code 8520. As was noted with respect to the Veteran's service-connected diabetes, while these service-connected disorders do cause some functional impact on the Veteran's occupation, there is no evidence and the Veteran has not contended that these disorders preclude him from engaging in or maintaining gainful employment. Consequently, the Board does not find that the record has raised an implied claim for a total disability rating based on individual unemployability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the medical evidence of record does not show findings that meet the criteria for an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy or left lower extremity peripheral neuropathy, the doctrine is not for application. Therefore, the claims for initial separate ratings in excess of 10 percent are denied. Gilbert, 1 Vet. App. 49. ORDER An initial rating in excess of 20 percent for diabetes mellitus, type 2, is denied. A rating of 40 percent, but not higher, for diabetes mellitus, type 2, is granted, for the period on and after August 17, 2012, subject to the statutes and regulations governing the payment of monetary benefits. A separate initial rating of 10 percent, but not higher, for right lower extremity peripheral neuropathy is granted, subject to the statutes and regulations governing the payment of monetary benefits. A separate initial rating of 10 percent, but not higher, for left lower extremity peripheral neuropathy is granted, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs