Citation Nr: 1306259 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 06-37 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus Type II from March 17, 2005 to November 13, 2006. 2. Entitlement to a rating in excess of 40 percent for diabetes mellitus Type II on and after November 14, 2006. 3. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which continued a 20 percent evaluation for diabetes mellitus, and granted service connection for peripheral neuropathy of the lower extremities, for which initial, separate, 10 percent ratings were granted effective from March 17, 2005. While the appeal was pending, a June 2011 rating decision was issued assigning a 40 percent evaluation for diabetes effective from November 14, 2006. The United States Court of Appeals for Veterans Claims (Court) held that "staged" ratings, as are currently in effect for this condition, 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). Further, in a September 2012 rating action, separate initial 20 percent evaluations were granted for peripheral neuropathy of the lower extremities, effective from March 17, 2005. Where, as is the case here, an award of service connection for a disability has been granted and the assignment of an initial disability evaluation and subsequently assigned disability evaluations for that condition are disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged," and have been in this case. As such, the claims are characterized as shown on the title page of this decision. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Board further observes that as the increased evaluations for diabetes and peripheral neuropathy granted during the appeal period do not represent the maximum rating available for the disabilities at issue, the Veteran's claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded the case for further development in October 2011. As will be discussed further herein, there has been substantial compliance with those remand directives, and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). A January 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This matter will be more fully explained herein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The TDIU claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the appeal period extending from March 17, 2005 to November 13, 2006, the evidence shows that the Veteran's diabetes mellitus was treated with medication and a restricted diet, but there was no indication that the disorder required the regulation of activities. 2. For the appeal period extending from November 14, 2006 forward, the Veteran's diabetes mellitus was characterized by insulin use, a restricted diet, and regulation of activities, without evidence of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 3. From March 17, 2005 forward, peripheral neuropathy of the lower extremities has primarily been manifested by occasional numbness and tingling with sensory deficit, without pain or decreased strength or motor neuropathy. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met for the appeal extending from March 17, 2005 to November 13, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for a disability rating in excess of 40 percent for diabetes mellitus have not been met for the appeal period extending from November 14, 2006, forward. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.119, Diagnostic Code 7913 (2012). 3. The schedular criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 4. The schedular criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the initial rating claim on appeal, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran dated in June 2005 (addressing the elements of service connection prior to the grant of service connection for peripheral neuropathy. As this is also an appeal arising from a grant of service connection, the notice that was provided before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). To the extent that the claim on appeal also includes an increased rating claim for diabetes, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This notice was provided to the Veteran in April 2005 and November 2010 letters. Subsequently, the claims on appeal were adjudicated in a statement of the case (SOC) issued in October 2006 and in several supplemental SOCs issued thereafter. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues on appeal has been obtained. The Veteran's service treatment and post-service treatment records were obtained and the file includes arguments, contentions and statements of the Veteran, his spouse, and his representative. In addition, VA examinations were conducted in 2005, 2010, and 2011 and neither the Veteran nor his representative has suggested that any VA examination report was in any way inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. 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 for that rating. 38 C.F.R. § 4.7. 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. 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). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the present appeal involving peripheral neuropathy of the lower extremities. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court 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). Background As the factual background relating to the claims for diabetes and peripheral neuropathy are substantially similar, the entire factual and procedural background relating to both claims will be presented herein. In an August 2002 rating action, service connection was established for diabetes mellitus associated with herbicide exposure, for which an initial 20 percent evaluation was assigned, effective from July 9, 2001. The Veteran filed an increased rating claim for diabetes on March 17, 2005. At that time, he reported that he was now taking medication for diabetes and had neuropathy of both feet and legs. He also mentioned having hypertension and erectile dysfunction. A private medical record of March 2005 reflects that assessments of Type II diabetes mellitus, uncontrolled; hypertension; and diabetic peripheral neuropathy were made. A VA record dated in April 2005 documents an impression of diabetes without complications, and reflects that the Veteran's medical history also included hypertension. A VA diabetes examination was conducted in July 2005. The Veteran's listed medications included Lantus Insulin started in May 2005 (on tapering doses since he was described as a new start for insulin therapy). The report indicated that there had been episodes of hypoglycemic reactions or ketoacidosis which required hospitalization (not further explained and absent any such evidence in the record). It was noted that the Veteran had been told to follow a restricted/special diet, and had not been told to regulate or restrict activities. In this regard, the examiner explained that activities were restricted secondary to degenerative joint disease of the right knee. The report also mentioned that there were symptoms of peripheral neuropathy, manifested by parasthesias and loss of sensation in all four extremities, described as moderate, and etiologically associated with diabetes. Physical examination revealed intermittent numbness and parasthesias from the mid-thigh to the toes bilaterally. Erectile dysfunction was also noted. In an August 2005 rating decision, the RO continued a 20 percent evaluation for diabetes mellitus, and granted service connection for peripheral neuropathy of the lower extremities, for which initial, separate, 10 percent ratings were granted effective from March 17, 2005. Service connection was also established for erectile dysfunction, secondary to diabetes. In an August 2005 rating action, an effective date of March 17, 2005 was assigned for separate, 10 percent evaluations for peripheral neuropathy of the lower extremities. In September 2005, Dr. K. A. prepared a statement indicating that the Veteran's diabetes had become worse, and mentioned that he was having associated symptoms of dizziness and sweating. It was noted that the Veteran had to take oral diabetic medications, as well as insulin, and that he had been asked to increase his physical activity to improve control of diabetes. It was noted that he had been given a specific diet for diabetes and asked to restrict certain foods. On November 14, 2006, Dr. K. A. offered a second medical statement indicating that the Veteran's diabetes was uncontrolled and worsening. It was noted that he was on oral medications as well as insulin, and that his blood sugars were still uncontrolled. She indicated that previously, the Veteran had been asked to increase his physical activity, but indicated that this had resulted in fatigue; therefore, physical activities had been limited. She also mentioned that he had significant neuropathy, which affected his ability to exercise. The statement also reflected that the Veteran continued to follow a specific diet and to restrict certain foods. A VA examination was conducted in December 2010 and the claims file was reviewed. It was noted that the Veteran was taking Metformin twice daily for treatment of diabetes. Examination of the lower extremities revealed decreased dorsalis pedis, and posterior tibial pulses. Other findings included numbness, decreased vibration, decreased pain/pinprick sensation, and decreased light touch of each leg and foot. Reflex examination findings were normal. In an addendum to the December 2010 examination dated in March 2011, the examiner explained that the Veteran had limitations on activity secondary to peripheral neuropathy, observing that decreased sensation increased the Veteran's chances for harm (such as due to a fall). Additional orthopedic consultation relating to the Veteran's right lower extremity was recommended. In June 2011, a rating decision was issued assigning a 40 percent evaluation for diabetes effective from November 14, 2006. In addition, separate 20 percent ratings were assigned for peripheral neuropathy of each lower extremity, effective from July 1, 2005. Another VA examination was conducted in November 2011. The report indicated that diabetes was being treated with a prescribed oral hypoglycemic agent and one insulin injection per day. There was no recent history of hospitalization for hypoglycemic or ketoacidosis reactions. It was reported that the Veteran required regulation of activities as part of the medical management of his diabetes, to the extent that he had to avoid exertional activities such as long walks. It was reported that the Veteran visited his diabetic provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times a month, and that he had not been hospitalized during the past 12 months for these symptoms. It was noted that a complication of diabetes was peripheral neuropathy. The report mentioned that the Veteran's diabetes and complications impacted his ability to work due to a fluctuating blood sugar level, especially hypoglycemia, which made him dizzy once a week. It was noted that the Veteran used to be a mail sorter at a post office, but had to retire in 1999 due to fatigue and dizziness from low blood sugar. A VA evaluation of peripheral neuropathy was also done in November 2011. The Veteran reported that he only had symptoms of tingling and numbness when he had low blood sugar or hypoglycemia and that these were temporary symptoms. It was noted that he was not taking any medication for his neuropathy. Examination revealed no pain in the lower extremities, but was positive for symptoms of mild parasthesias and numbness. Strength and reflexes were normal in the knees and ankles. Light touch and position sense were normal in the lower extremities. Vibration sensation was decreased in the lower extremities and cold sensation was normal. There was no evidence of muscle atrophy. The examiner concluded that lower extremity diabetic peripheral neuropathy of the sciatic and femoral nerves did not reveal evidence of complete or incomplete paralysis and noted that findings were essentially normal. The report indicated that an EMG study of December 2010 revealed abnormalities of the lower extremities described as stocking distribution parasthesias. The report further stated that peripheral neuropathy affected the Veteran's ability to work. It was observed that the there was no amputation of either lower extremity and that the Veteran did not walk with an assistive device. It was explained that the Veteran had occasional numbness and tingling of the upper and lower extremities associated with hypoglycemic reactions, occurring once or twice a week. In a statement provided in April 2012, the Veteran indicated that while hospitalized in October 2011 for treatment of a transient ischemic attack, his blood sugar dropped to a low of 38, affecting his cognitive skills. He also indicated that he often had to rely on a walker because his legs tingled and he did not have feeling in them. He mentioned that he had fallen several times and had broken his foot over the summer. Also added to the file were the Veteran's blood glucose reading from November and December 2011. In a lay statement from the Veteran's wife dated in April 2012, she indicated that on several occasions, the Veteran had become disoriented while driving a short distance from home. The file contains a private medical report of February 2012 indicating that the Veteran was seen for episodes of confusion and forgetfulness. A history of diabetes and stroke was noted. Memory loss was diagnosed and the doctor indicated that she suspected that metabolic issues like hypoglycemia could be causing some of the episodes. Spells of confusion associated with hypoglycemia was diagnosed in June 2012. In a September 2012 rating action, an increased rating of 20 percent was granted for peripheral neuropathy of each lower extremity, effective from March 17, 2005. I. Diabetes Mellitus The Veteran's diabetes mellitus is currently assigned a 20 percent disability evaluation from March 17, 2005 to November 13, 2006, and a 40 percent disability effective from November 14, 2006, pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under that diagnostic code, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent disability evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability evaluation is warranted for diabetes mellitus requiring insulin, a 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. A 100 percent evaluation is contemplated for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus progressive loss of weight and strength or complications that would be compensable if separately evaluated. Having reviewed the evidence pertinent to the appeal period, the Board concludes that the currently assigned staged ratings are appropriate with respect to this claim. Lay and clinical evidence pertaining to the appeal period extending from March 17, 2005 to November 13, 2006, reflect that the Veteran was on a restricted diet for treatment of diabetes and that insulin was also required for treatment. However, there was no indication that regulation of activities was medically indicated. With regard to the criterion involving regulation of activities, medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007) (holding that medical evidence is required to show that occupational and recreational activities have been restricted, for purposes of Diagnostic Code 7913 providing a 40 percent disability rating for diabetes when the diabetes requires insulin, restricted diet, and regulation of activities). Upon VA diabetes examination of July 2005, the report specifically stated that the Veteran had been told to follow a restricted/special diet, and had not been told to regulate or restrict activities. Further, in a September 2005 private medical statement of Dr. K. A., she indicated that the Veteran was taking oral diabetic medications, as well as insulin, and noted that he had been asked to increase, not restrict, his physical activity to improve control of diabetes. Accordingly, as there was no showing during this portion of the appeal period that the Veteran's diabetes required regulation of activities, there is no basis for the assignment of an evaluation in excess of 20 percent for the appeal period prior to November 14, 2006. On November 14 2006, Dr. K. A. issued a medical statement to the effect that the Veteran's diabetes was uncontrolled and worsening. It was noted that he was on oral medications as well as insulin, and that his blood sugars were still uncontrolled. She indicated that previously, the Veteran had been asked to increase his physical activity, but indicated that this had resulted in fatigue; therefore, physical activities had been limited. Such evidence provided the basis for the assignment of a 40 percent evaluation for diabetes from that date forward. The remaining question on appeal is whether there is any basis for the assignment of a 60 percent evaluation for any portion of the appeal period. In order to warrant the assignment of a 60 percent evaluation, 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 must be shown. The Board acknowledges that the file contains references to hypoglycemic reactions during the appeal period. The evidence reflects that upon VA examination of November 2011, it was reported that the Veteran visited his diabetic provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times a month, and that he had not been hospitalized during the past 12 months for these symptoms. Private medical records of 2012 include a February entry indicating that memory loss was diagnosed and the doctor indicated that she suspected that metabolic issues like hypoglycemia could be causing some of the episodes. Spells of confusion associated with hypoglycemia was diagnosed in June 2012. However, the rating criteria provide that these episodes must be of such frequency and severity as to require one or two hospitalizations per year or twice a month visits to a diabetic care provider. In this regard, neither lay nor clinical evidence indicates that the criteria supporting a 60 percent evaluation for diabetes are met at any time during the appeal period. Accordingly, an evaluation in excess of 40 percent is not warranted from November 14, 2006, forward and this component of the claim must be denied. The Board has also considered whether complications of diabetes may warrant separate consideration and/or evaluation. In this case, service connection has already been separately established for peripheral neuropathy of the upper extremities and for erectile dysfunction, both secondary to diabetes. Service connection is also already in effect for hypertension. Accordingly, the Board cannot identify any other clinical condition which may represent an additional complication of diabetes which has not already been addressed. Having considered the concept of staged ratings in this case as discussed in Hart, supra, the Board concludes that entitlement to a disability rating in excess of 20 percent for diabetes, from March 17, 2005 to November 13, 2006, is not warranted; nor is a disability rating in excess of 40 percent from November 14, 2006, forward. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine as applicable. Gilbert, 1 Vet. App. 49, 53-56 (1990); See 38 U.S.C.A. § 5107(b) (West 2002). II. Peripheral Neuropathy - Lower Extremities The Veteran's claim for a higher evaluation for peripheral neuropathy of the right and left lower extremities was placed in appellate status by his disagreement with the initial rating award. In such circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings, as will be further explained herein. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The appeal period applicable to this claim extends from March 17, 2005, when service connection was established and initial 20 percent evaluations were assigned for peripheral neuropathy of both extremities. For the entirety of the appeal period, the Veteran's peripheral neuropathy has been evaluated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520, used for rating paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and moderately severe incomplete paralysis is rated 60 percent disabling. Complete paralysis of the sciatic nerve, characterized by foot dangling and dropping, no active movement possible below the muscles of the knee, flexion of the knee weakened or (very rarely) lost, warrants a maximum 80 percent rating. The term "incomplete paralysis" with nerve injuries such as this indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis described above, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note under "Diseases of the Peripheral Nerves". 38 C.F.R. § 4.124(a). At the outset, the Board notes that the Court has held that where a diagnostic code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Inasmuch as Diagnostic Code 8520 is not based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45, do not apply. Essentially, the evidence dated during the entirety of the appeal period reflects that the neurological disability affecting the right and left lower extremities is best characterized by moderate incomplete paralysis, warranting a continuation of the currently assigned 20 percent evaluations. In order to receive an increased evaluation, the Veteran's nerve disability must be productive of moderately severe incomplete paralysis. In this case, evidence indicates that the Veteran's neurological symptoms such as tingling and numbness of the lower extremities were temporary and occasional only, and primarily occurred when he had episodes of low blood sugar or hypoglycemia (November 2011 VA examination report). Consideration of recent clinical findings similarly indicates that the evidence does not support the finding that the Veteran's nerve disability of either lower extremity more closely approximates a picture of moderately severe, incomplete paralysis. Upon VA examination of November 2011, there was no pain in the lower extremities, but symptoms of parasthesias and numbness, described as mild only, were noted. Strength and reflexes were normal in the knees and ankles. Light touch and position sense were normal in the lower extremities. Vibration sensation was decreased in the lower extremities and cold sensation was normal. There was no evidence of muscle atrophy. The examiner concluded that lower extremity diabetic peripheral neuropathy of the sciatic and femoral nerves did not reveal evidence of complete or incomplete paralysis and noted that findings were essentially normal. The Board has considered lay statements from the Veteran and his wife dated in 2012 to the effect that the Veteran indicated that while hospitalized in October 2011 for treatment of a transient ischemic attack, his blood sugar dropped to a low of 38, affecting his cognitive skills. He also indicated that he often had to rely on a walker because his legs tingled and he did not have feeling in them. He mentioned that he had fallen several times and had broken his foot over the summer. In a lay statement from the Veteran's wife dated in April 2012, she indicated that on several occasions, the Veteran had become disoriented while driving a short distance from home. The Board has considered these lay assertions essentially to the effect that the nerve disability of the lower extremities are of such severity as to warrant initial evaluations in excess of 20 percent. While the Veteran is generally considered competent to report symptoms, a lay person such as the Veteran is not competent to offer an opinion on complex medical questions, such determining the clinical severity of his service-connected neurological disorder. As explained above, for VA rating purposes the severity of a nerve disability is based on application of specific schedular criteria. The Veteran and his wife do not maintain, nor does the evidence show that either one has the ability or specialized knowledge with which to make clinical findings and assessments themselves. In this regard, it is important to note that the Veteran's stroke residuals could be causing or at least partially contributing to his recent problems, as opposed to his diabetes. Essentially, and particularly given this fact, it is beyond the competency of the Veteran and his spouse e to determine and assess the severity of the Veteran's neurological disability of the lower extremities themselves. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Moreover, here the clinical evidence contains competent medical assessments of mild neurological impairment of the lower extremities, made by a VA examiner in November 2011. As such, the clinical evidence relating to the symptoms and severity associated with the neurological conditions are considered to be the most reliable and probative evidence in this case. The Board has reviewed the remaining diagnostic codes relating to nerve conditions but finds Diagnostic Code 8520 is the most appropriate diagnostic code to apply in this case with regard to the Veteran's service-connected neurological conditions. See 38 C.F.R. § 4.124a (2012). Accordingly, the criteria for initial evaluations in excess of 20 percent for peripheral neuropathy of the right and left lower extremity have not met for any portion of the appeal period. See 38 C.F.R. § 4.124a, DC 8520, Fenderson, supra; Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2008). In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine as applicable. Gilbert, 1 Vet. App. 49, 53-56 (1990); See 38 U.S.C.A. § 5107(b) (West 2002). III. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's, diabetes mellitus and peripheral neuropathy of the lower extremities are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available for both diabetes mellitus and peripheral neuropathy of the lower extremities under the applicable diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected diabetes mellitus and peripheral neuropathy of the lower extremities, under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER For appeal period extending from March 17, 2005 to November 13, 2006, a disability rating in excess of 20 percent for Type II diabetes mellitus is denied. For appeal period extending from November 14, 2006, a disability rating in excess of 40 percent for Type II diabetes mellitus is denied. An initial disability in excess of 20 percent for peripheral neuropathy of the right lower extremity, is denied. An initial disability in excess of 20 percent for peripheral neuropathy of the left lower extremity, is denied. REMAND When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009), at 453-54. A review of the record reflects that a TDIU was granted in this case from August 27, 2003 to November 14, 2006. A 100% schedular evaluation was assigned effective from November 14, 2006. In addition special monthly compensation under 38 U.S.C.A. § 114, subsection (k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ has been in effect since March 17, 2005. In addition, special monthly compensation under 38 U.S.C.A. § 114, subsection (s) and 38 C.F.R. § 3.350(i) for prostate cancer rated as 100 percent disabling, with and additional 60 percent evaluation for hearing loss, were effective from June 17, 2010 to March 23, 2011. The 2011 VA examination report indicates that the Veteran used to be a mail sorter at a post office, but had to retire in 1999 due to fatigue and dizziness from low blood sugar. The report mentioned that the Veteran's diabetes and complications impacted his ability to work due to a fluctuating blood sugar level, especially hypoglycemia, which made him dizzy once a week. As an initial matter, the Board notes that for a portion of the appeal ending on November 14, 2006, the Veteran had been in receipt of a TDIU, prior to being in receipt of a 100 percent schedular evaluation thereafter. In this regard, on June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, subsequently, the United States Court of Appeals for Veterans Claims issued a decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of Special Monthly Compensation, therefore, the issue of entitlement to TDIU in such circumstances is not necessarily moot. Accordingly, to the extent that the appeal period in this case extends from November 14, 2006, the Board believes that consideration of whether TDIU may be warranted for any time period from that time forward thereafter should be considered. In doing so the Board makes no preliminary finding as to whether the Bradley holding is definitively applicable in this case; the Remand action below is simply being requested for the sake of completeness and clarification. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should provide the Veteran with a proper notice letter in connection with a claim for TDIU. 2. The RO/AMC shall provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his potential TDIU claim for the portion of the appeal period extending from November 15, 2006, forward. Appropriate steps should be taken to obtain any such identified records. The RO/AMC should take such additional development action as it deems proper with respect to the claim for a TDIU claim based on impairment attributable to the Veteran's service-connected conditions. In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary. 3. The RO/AMC should then adjudicate and determine the Veteran's eligibility for TDIU benefits for the appeal period extending from November 15, 2006, forward. If a TDIU is denied, the Veteran should provided a detailed explanation of the reasons for such denial, particularly in the event that he is simply ineligible. If the claim is denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs