Citation Nr: 1308419 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-28 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for polyneuropathy of the right lower extremity. 2. Entitlement to an initial disability rating in excess of 20 percent for polyneuropathy of the left lower extremity. 3. Entitlement to an initial disability rating in excess of 10 percent for polyneuropathy of the right upper extremity. 4. Entitlement to an initial disability rating in excess of 10 percent for polyneuropathy of the left upper extremity. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to July 1973. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran's polyneuropathy of the right lower extremity is manifested by wholly sensory involvement, including numbness, burning pain, reduced vibratory sensation, absent knee and ankle jerk, and the ability to walk less than one-fourth of a mile before needing to stop and rest. 2. The Veteran's polyneuropathy of the left lower extremity is manifested by wholly sensory involvement, including numbness, burning pain, reduced vibratory sensation, absent knee and ankle jerk, and the ability to walk less than one-fourth of a mile before needing to stop and rest. 3. The Veteran's polyneuropathy of the right (major) upper extremity is manifested by pain and numbness in the hands; good grip strength with occasional dropping of items; no difficulty with fine movements including manipulating buttons, zippers, shoelaces, turning pages; a maintained ability to manipulate and identify small change in his hands with his eyes closed. 4. The Veteran's polyneuropathy of the left (minor) upper extremity is manifested by pain and numbness in the hands; good grip strength with occasional dropping of items; no difficulty with fine movements including manipulating buttons, zippers, shoelaces, turning pages; a maintained ability to manipulate and identify small change in his hands with his eyes closed. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for polyneuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a , Diagnostic Code 8520 (2012). 2. The criteria for an initial disability rating in excess of 20 percent for polyneuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a , Diagnostic Code 8520 (2012). 3. The criteria for an initial disability rating in excess of 10 percent for polyneuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a , Diagnostic Code 8515 (2012). 4. The criteria for an initial disability rating in excess of 10 percent for polyneuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a , Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the claimant's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran has been provided the requisite notice as indicated above with respect to his claim for service connection for polyneuropathy of the extremities as separate disabilities related to his service-connected diabetes mellitus in a letter dated August 2008, which was prior to the initial RO rating decision denying the benefit sought. See, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering notice no longer required because the purpose that the notice is intended to serve has been fulfilled. 38 U.S.C.A. § 5103(a); Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See 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, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained available private medical records; service treatment records; VA treatment records; a VA examination report, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present, written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in conjunction with his claim for service connection in January 2009. Service connection was granted and disability ratings were assigned. The Veteran's representative initiated the present appeal by submitting a notice of disagreement with the disability ratings assigned for polyneuropathy of each extremity in March 2009. At that point the representative asserted that the January 2009 examination was inadequate to rate the Veteran's disabilities. VA attempted to afford the Veteran a VA examination with respect to his claims for increased disability rating on multiple occasions including September 2010 and February 2011. The February 2011 was the result of a February 2011 Board remand to afford the Veteran this examination. The Veteran has failed to report to these examinations and not offered any good cause for his failure to report. The Veteran was informed at his address of record, that the February 2011 examination was scheduled. Neither the Veteran nor his representative has offered any cause for his failure to report to the two recently scheduled examinations. Under the applicable criteria, when entitlement to a benefit based on an original claim for service connection, cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such examination, or re-examination, the claim must be adjudicated on the evidence of record. 38 C.F.R. § 3.655 (2012). Since the claim involves initial disability ratings assigned upon a grant of service connection, it involves and original claim and must be rated on the evidence of record. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Disability Ratings Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). 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 (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). Service connection for diabetes mellitus has been in effect since June 2003. Service connection has been established for polyneuropathy of the upper and lower extremities as related to the service connection diabetes mellitus and warranting separate disability ratings for each extremity. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Private medical treatment records dated October 2004, June 2005, April 2006, October 2006, and October 2007 reveal that the Veteran was seen for outpatient treatment; type 2 diabetes mellitus was indicated as his primary medical problem. Each of these medical records indicates that no neurologic symptoms were reported or noted during treatment. An April 2008 private medical treatment record reveals that the Veteran was seen for follow-up evaluation related to his service-connected diabetes mellitus. He reported he "can't walk as his legs get numb at times for over 1 year, worse with standing and walking. Hands go to sleep a lot as well with walking. One of his toes hurts off and on in right foot. Wakes up with bilateral hand pains and numbness, denies repetitive activity with hands." Possible bilateral carpal tunnel syndrome and possible diabetic neuropathy were suspected as being the cause of the reported symptoms. Additional testing was ordered. Doppler testing conducted in May 2008 revealed evidence of moderate arterial insufficiency of the left lower extremity as contributing to the symptoms of "leg pain and numbness with occasional burning sensation." In June 2008, private neurologic testing of the upper extremities revealed sensory polyneuropathy, likely due to the service-connected diabetes mellitus. In January 2009, a VA examination of the Veteran was conducted. The examiner reviewed the claims file and specifically referenced the private medical records of neurologic testing in 2008. The Veteran reported being right hand dominant and that he had developed numbness and a burning sensation in both hands and feet over the past two to three years. He reported that the symptoms in his feet limited his ability to walk to less than one-fourth of a mile before he had to stop and rest. The Veteran's hands maintained good grip strength, but occasionally dropped objects. He reported no difficulty with fine manipulation and small objects such as zippers, buttons, shoelaces, or turning the pages of a book. Physical examination revealed that the Veteran was alert and walked with a normal gait without the use of assistive devices. Examination of the hands revealed normal digital function. He could manipulate a dime and penny in his hands with his eyes closed and he could also identify each coin. He could discern smooth from rough with his eyes closed. In his lower extremities, dense sensory loss up to the level above both knees, bilaterally, was shown. Vibratory sensation was also diminished upon tuning fork testing. Knee and ankle jerks were absent, bilaterally. Review of the 2008 private neurologic tests revealed generalized sensory polyneuropathy along with left sided carpal tunnel symptoms. The diagnosis was generalized sensory polyneuropathy of all extremities related to the service-connected diabetes mellitus. In March 2009, the Veteran's representative submitted an notice of disagreement with the disability rating assigned for each extremity. The Veteran's representative specifically asserted that the Veteran warranted the assignment of a 30 percent disability rating for each extremity. Interestingly, 30 percent disability ratings are not available for assignment under the diagnostic codes used to rate the both lower extremities and the left upper extremity. The representative contended that the Veteran was not examined by a "doctor that is a specialist in neuropathy." While the physician's specialty is not specifically indicated, the examination was for specifically for peripheral nerve disorders and provides evidence related to the Veteran's reported neurologic symptoms. The Veteran's representative also asserted that "the Veteran's neuropathy is related to his diabetes type II from his medical evidence." This argument is nonsensical as service connection as been established for the Veteran's polyneuropathy as being associated with his service connection diabetes mellitus. The representative argued that the "examiner states in the rating decision (sic) [examination report] that the Veteran can walk a fourth of a mile, but the examiner fails to state the Veteran has great difficulty walking the fourth of a mile." While the examiner reported the Veteran's statement that he could walk up to one-fourth of a mile before he had to stop and rest, there is no indication in the examination report that the Veteran's stated that he had difficulty walking to the reported distance of one-fourth of a mile. Moreover, based on the representative's contentions, four additional examinations were scheduled, but the Veteran was unable or failed to attend any of the four additional scheduled examinations. A. Lower Extremities The neurologic diagnostic code applicable to the Veteran's bilateral lower extremity polyneuropathy associated with his service-connected diabetes mellitus is Diagnostic Code 8520, concerning the evaluation of sciatic nerve paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." Neither the Rating Schedule nor the regulations provide definitions for words such as "moderately severe." Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). The Veteran's service-connected polyneuropathy of the right and left lower extremities are rated at 20 percent for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. This disability is manifested by wholly sensory involvement including numbness; burning pain; reduced vibratory sensation; absent knee and ankle jerk. He has the ability to walk less than one-fourth of a mile before needing to stop and rest. There is no evidence that the Veteran's polyneuropathy of the right and left lower extremities are manifested by symptoms warranting the assignment of an initial rating in excess of 20 percent. His symptoms are wholly sensory and therefore the rating is for the mild, or at most, the moderate degree. Moderate incomplete paralysis of the sciatic nerve warrants a 20 percent evaluation. There is no evidence of complete paralysis of the sciatic nerve which is includes marked muscular atrophy of the lower extremities, foot dangling and dropping, no active movement of the muscles below the knee, or flexion of the knee being weakened or lost. Accordingly, an initial rating in excess of 20 percent rating for polyneuropathy of the right lower extremity, and an initial rating in excess of 20 percent rating for polyneuropathy of the left lower extremity is not warranted. B. Upper Extremities The Veteran is right handed. The disability ratings assigned for his right upper extremity are for the major extremity, while those assigned for the left upper extremity are for the minor extremity. The Veteran's service-connected polyneuropathy of the upper extremities is rated under Diagnostic Code 8515 for paralysis of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8515. A 10 percent rating is assigned for mild incomplete paralysis of the median nerve for both the major and minor extremity; moderate incomplete paralysis of the median nerve warrants the assignment of a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity; severe incomplete paralysis warrants the assignment of a 40 percent rating for the minor extremity and a 50 percent rating for the major extremity. Complete paralysis of the median nerve warrants the assignment of a 60 percent rating for the minor extremity and a 70 percent rating for the major extremity. Complete paralysis of the median nerve contemplates such symptoms as the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Manifestations of the Veteran's service-connected polyneuropathy of the right upper extremity contemplates a 10 percent disability rating for mild incomplete paralysis of the median nerve of the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The evidence of record demonstrates that this disability is no more than mild in degree. Although manifested by pain and numbness in the hands, grip strength was good grip, with dropping items only on occasion. The Veteran had no difficulty with fine movements including manipulating buttons, zippers, shoelaces, and turning pages. The Veteran maintained the ability to manipulate small change in his hands with his eyes closed. Manifestations of the Veteran's service-connected polyneuropathy of the left upper extremity contemplates a 10 percent disability rating for mild incomplete paralysis of the median nerve of the minor extremity. Id. The evidence of record demonstrates that this disability is no more than mild in degree. Although manifested by pain and numbness in the hands, grip strength was good grip, with dropping items only occasionally. The Veteran had no difficulty with fine movements including manipulating buttons, zippers, shoelaces, and turning pages. The Veteran maintained the ability to manipulate small change in his hands with his eyes closed. Accordingly, an initial rating in excess of 10 percent is not warranted. C. Final Considerations Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2011). 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. However, 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). 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 Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected polyneuropathy of the extremities was evaluated under Diagnostic Codes 8515, 8520, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by the polyneuropathy of the Veteran's upper and lower extremities at issue. The Veteran's polyneuropathy of the lower extremities is manifested by wholly sensory involvement, including numbness, burning pain, reduced vibratory sensation, absent knee and ankle jerk, and the ability to walk less than one-fourth of a mile before needing to stop and rest. The Veteran's polyneuropathy of the upper extremities is manifested by pain and numbness in the hands; good grip strength with occasional dropping of items; no difficulty with fine movements including manipulating buttons, zippers, shoelaces, turning pages; and a maintained ability to manipulate and identify small change in his hands with his eyes closed. The criteria for the 20 percent ratings assigned for the lower extremities and the 10 percent ratings assigned for the upper extremities reasonably describe the disability level and symptomatology that are the result of these disorders. Initial evaluations in excess of those assigned for the polyneuropathy of each extremity are provided for certain manifestations of neurologic impairment, but the medical evidence demonstrates that those manifestations are not present in this case. Consequently, the Board concludes that the schedular evaluations in this case are adequate and that referral of the issues of entitlement for initial ratings in excess of those currently assigned for polyneuropathy of the upper and lower extremities for extraschedular consideration is not required. See 38 C.F.R. § 4.119, Diagnostic Codes 8515, 8520; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected polyneuropathy of the upper and lower extremities, the evidence shows no distinct periods of time during the appeal period, when these disorders varied to such an extent that ratings greater or less than the initial ratings currently assigned would be warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A total disability rating based on individual unemployability was specifically considered and denied in an August 2009 rating decision, which the Veteran did not appeal. Accordingly, that decision is final and consideration of a total disability rating based on individual unemployability is not warranted. 38 U.S.C.A. § 7105; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) In reaching these decisions, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to initial ratings in excess of those currently assigned for polyneuropathy of the upper and lower extremities, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial disability rating in excess of 20 percent for polyneuropathy of the right lower extremity is denied. An initial disability rating in excess of 20 percent for polyneuropathy of the left lower extremity is denied. An initial disability rating in excess of 10 percent for polyneuropathy of the right upper extremity is denied. An initial disability rating in excess of 10 percent for polyneuropathy of the left upper extremity is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs