Citation Nr: 1309835 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 06-11 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) prior to July 15, 2010. 3. Entitlement to an initial rating in excess of 20 percent for right eye arteritic ischemic neuropathy (AION) prior to September 27, 2005. 4. Entitlement to initial compensable ratings for peripheral vascular disease (PVD) of the right and left lower extremities. 5. Entitlement to initial ratings in excess of 10 percent for peripheral neuropathy (PN) of the right and left lower extremities prior to April 7, 2009, and in excess of 20 percent on and after April 7, 2009. 6. Entitlement to a total disability rating for VA compensation purposes based on individual unemployability (TDIU) prior to July 15, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to October 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision entered in July 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Due to the Veteran's relocation, this matter is now within the jurisdiction of the RO in North Little Rock, Arkansas. It was most recently before the Board in May 2012, at which time the Board denied entitlement to an initial rating in excess of 30 percent for right eye AION on and after September 27, 2005, and remanded all of the other issues on appeal for additional development by the VA's Appeals Management Center (AMC) in Washington, DC. Following the AMC's attempts to complete the requested actions, the case has been returned to the Board for further review. The issues of entitlement to service connection for a low back disorder and for an initial rating in excess of 20 percent for right eye AION prior to September 27, 2005, and for a TDIU prior to July 15, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDINGS OF FACT 1. For the period from September 5, 2002, to April 6, 2009, the Veteran's CAD was manifested by a METs level of 8, without a showing of cardiac hypertrophy or dilatation or an ejection fraction value warranting any higher evaluation than 10 percent. 2. From April 7, 2009, to July 14, 2010, the Veteran's CAD was manifested by a METS level of 3.5 units, a totally occluded right coronary artery that could not be stented and some obstruction of other coronary arteries, abnormal electrocardiogram, and an ejection fraction at times less than 50 percent but not less than 30 percent. 3. For the period from November 24, 2003, to May 4, 2009, the Veteran's PVD of each lower extremity was predominantly manifested by claudication with walking of 100 yards or more, diminished peripheral pulses, and hair loss, but not complete hair loss or claudication on walking between 25 and 75 yards on a level grade at two miles per hour. 4. For the period on and after May 5, 2009, PVD of each lower extremity was manifested by ankle-brachial indexes of 1.16 and 1.18, without a showing of claudication, diminished pulses, or trophic changes. 5. For the period prior to July 15, 2010, the Veteran's PN affecting each lower extremity was manifested by moderately severe incomplete paralysis of the sciatic nerve, but without a showing of severe incomplete paralysis with marked muscle atrophy or complete paralysis with foot drop and no active movement of below-the-knee muscles. 6. On and after July 15, 2010, the Veteran's PN affecting each lower extremity was manifested by not more than moderate incomplete paralysis of the sciatic nerve. 7. For each period in question, the schedular criteria are shown to be adequate for the evaluation of each disability at issue and the schedular ratings assigned therefore are commensurate with the level of impairment shown. CONCLUSIONS OF LAW 1. The criteria for the assignment of more than a 10 percent rating for CAD for the period from September 5, 2002, to April 6, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.2, 4.7, 4.10, 4.104; DC 7005 (2012). 2. The criteria for the assignment of a 60 percent rating, but none greater, for CAD from April 7, 2009, to July 14, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.2, 4.7, 4.10, 4.104; DC 7005 (2012). 3. The criteria for the assignment of 20 percent ratings, but none greater, for PVD for each lower extremity for the period from November 24, 2003, to May 4, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.2, 4.7, 4.10, 4.104; DC 7114 (2012). 4. The criteria for the assignment of compensable ratings for PVD of each lower extremity for the period on and after May 5, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.2, 4.7, 4.10, 4.104, DC 7114 (2012). 5. The criteria for the assignment of 40 percent ratings, but none greater, for PN affecting each lower extremity for the period prior to July 15, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.2, 4.7, 4.10, 4.124a, DC 8699-8620 (2012). 6. The criteria for the assignment of more than 20 percent ratings for PN affecting each lower extremity on and after July 15, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.2, 4.7, 4.10, 4.124a, DC 8699-8620 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Remand Compliance This matter was previously remanded by the Board in January 2008, November 2009, and May 2012 in order to accomplish certain development, including the conduct of VA medical examinations. All of the actions sought by the Board through its prior development requests as to the matters herein addressed on their merits now appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of letters from the RO or AMC to the Veteran in October 2003 as to the claims for service connection and in March 2006, March 2008, and February 2009, and June 2012. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated, most recently in a December 2012 supplemental statement of the case. Mayfield, 444 F. 3d at 1333. This appeal arises from the Veteran's disagreement with the initial evaluations assigned following certain grants of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice, including that pertaining to the assignment of disability ratings and effective dates, necessarily occurred subsequent to the RO's initial adjudicatory action in July 2004, in contravention of Pelegrini. Any error as to the timing of the notice provided, however, was cured by the RO's readjudication and issuance of a supplemental statement of the case at a point in time subsequent to the Veteran's receipt of full VCAA notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006). In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran or his attorney, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. Id. The Social Security Administration certified in March 2008 that it had conducted searches for the Veteran's records, but such could not be located. Further efforts would be futile and notice of this fact has been furnished to the Veteran. See 38 C.F.R. § 3.159 (c)(2),(e). Also, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claims herein addressed on their merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. 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). The record indicates that VA has afforded the Veteran multiple VA medical examinations in order to ascertain the nature and severity of the disabilities in question. The reports from these examinations, and the record as a whole, are found to be sufficiently detailed as to permit fair and equitable consideration of the merits of the issues presented. As such, further development action relative to the disabilities herein at issue is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. Legal Authority Governing Claims for Initial Ratings Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes (DCs) identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In this instance, the RO by its rating decision in July 2004 established service connection for various disabilities associated with diabetes mellitus, including CAD, PVD of each lower extremity, and PN of each lower extremity. At that time, a 10 percent rating was assigned under DC 7005 for CAD disease from September 5, 2002; 10 percent ratings under DC 8699-8620 effected from November 24, 2003; and 0 percent evaluations were assigned under DC 7114 for PVD of each lower extremity. Additional RO action in July 2009 assigned 20 percent ratings for PN of each lower extremity, effective from April 7, 2009. By its rating decision of February 2011, the RO increased the rating assigned for CAD from 10 percent to 100 percent, effective from July 15, 2010. On the basis of the foregoing, the issues presented are whether a rating in excess of 10 percent for CAD is for assignment prior to July 15, 2010; whether initial compensable ratings for PVD are for assignment; and whether initial ratings in excess of 10 percent are assignable for PN prior to April 7, 2009, and in excess of 20 percent on and after April 7, 2009. CAD The Veteran alleges that his CAD was more disabling prior to July 15, 2010, than is reflected by the 10 percent rating in effect from September 2002 to July 2010. With documented CAD that results in chronic congestive heart failure, or a workload of three METs (metabolic equivalent) or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent is evaluated as 100 percent disabling. More than one episode of acute congestive heart failure in the past year, or a workload of greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent is evaluated as 60 percent disabling. When a workload of greater than five METs but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray study, a 30 percent evaluation is merited. A workload of seven METs but not greater than ten METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required, a 10 percent evaluation is warranted. 38 C.F.R. § 4.104, DC 7005. A private medical record compiled in May 1999 referenced a questionable myocardial infarction at the age of 29 years and a hospital admission in 1997 for treatment of possible unstable angina. The Veteran, at the age of 55 years, was afforded a VA medical evaluation in November 2003, with notation of a blood pressure previously recorded in the clinic of 177/110. Current readings were of 130/70, 130/71, and 142/90, the last of which occurred with exertion. There was a history of prior use of nitroglycerine, but no recent chest pain. Current activities were noted to include walking six to eight miles daily. The diagnosis recorded was of CAD with an estimated METS of 8. X-ray of the chest disclosed no heart enlargement. A blood pressure of 138/90 was noted in September 2005. On a VA medical examination in April 2009, the Veteran indicated that he was "fairly stable" regarding his CAD. He described occasional chest pressure and dizziness and rare chest pain. He reported being able to wash windows and his car and to carry up to 25 pounds. Shortness of breath, syncope, or congestive heart failure was denied. Clinically, the heart rhythm was regular and there were no murmurs, clicks, or arrhythmias. No S-3 was appreciated. Some circulatory deficiencies of the lower extremities were identified. An electrocardiogram was interpreted as abnormal; it showed a normal sinus rhythm with sinus arrhythmia, a prior inferior infarct of undetermined age, and a possible anterior infarct of undetermined age that could not be ruled out. The pertinent diagnosis was of CAD and the Veteran's estimated METS level was 3.5. Emergent cardiac treatment was received in February 2010 for an acute coronary symptom with ischemia. An abnormal Persantine Thallium stress test demonstrating a reversible defect of the inferior wall, suggestive of ischemia or an artifact, was referenced. An ejection fraction of 49 percent was reported on testing. Cardiac catheterization studies demonstrated a total occlusion of the right coronary artery and obstructive CAD of the left circumflex coronary and left anterior descending coronary arteries. Angiography identified segmental wall motion and moderate to severe hypokinesis of the basal segment of the inferior wall; an ejection fraction of 55 percent was indicated. Angioplasty was attempted but the stent could not be placed in the occluded coronary artery. Three persons familiar with the Veteran submitted written statements in March 2009, none of whom referenced specifically the Veteran's CAD or any complaint of chest pain. When the Veteran was seen in follow-up by VA in March 2010, no use of nitroglycerine since the conduct of catheterization studies was reported. On a VA medical examination in July 2010, the Veteran noted very rarely occurring chest pain, as well as some dyspnea and fatigue. He reported having made use of nitroglycerine on only two occasions since February 2010. Various other cardiac-related medications were in use. Due to low back pain and excessive weight, METs testing could not be undertaken, but his METS level was estimated to be 3. Myocardial perfusion imaging in August 2010 revealed an ejection fraction of 51 percent and there were anteroseptal and inferolateral defects. In assessing the evidence presented, the Board finds that the record fails to demonstrate entitlement to more than a 10 percent rating under DC 7005 or any analogous DC for the Veteran's CAD for the period from September 5, 2002, to April 6, 2009. Findings recorded on a VA examination in November 2003 were inconsistent with more than a 10 percent rating under DC 7005 or other DC, given the estimated METs value of 8 and the Veteran's account of walking for many miles on a daily basis without reported chest pain. Salient evidence of an increased level of disablement is, however, furnished by the VA examination of April 7, 2009, as to the METs level of 3.5 units, in combination with complaints of chest pressure and abnormalities on electrocardiogram. This increased level of severity is borne out by the cardiac emergency occurring in February 2010 with a variety of testing showing occlusion or obstruction of coronary arteries and an ejection fraction fluctuating slightly above and below 50 percent. On that basis, the record supports the assignment of a 60 percent schedular evaluation, but none greater, for CAD from April 7, 2009, to July 14, 2010. In sum, it must be concluded that a preponderance of the evidence is against entitlement to a rating in excess of 10 percent for CAD for the period from September 5, 2002, to April 6, 2009, and that the record supports the assignment of a 60 percent rating but none greater for CAD from April 7, 2009, to July 14, 2010. As the preponderance of the evidence is against that portion of the claim, the benefit of the doubt doctrine is not applicable and the Veteran's claim for increase for that period prior to April 7, 2009, must be denied. Fenderson, supra; see38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364-1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). PVD The Veteran asserts that his PVD of the lower extremities is worse than shown by the assigned noncompensable rating. Under DC 7114, arteriosclerosis obliterans with claudication on walking more than 100 yards, and diminished peripheral pulses or ankle/brachial index of 0.9 or less, warrants a 10 percent rating. Claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and trophic changes (thin skin, absence of hair, dystrophic nails) or an ankle/brachial index of 0.7 or less, warrant a 40 percent rating. A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or an ankle/brachial index of 0.5 or less. A 100 percent rating is warranted for ischemic limb pain at rest, and either deep ischemic ulcers or an ankle/brachial index of 0.4 or less. 38 C.F.R. § 4.104, DC 7114. The notes associated with DC 7114 are: NOTE (1): The ankle/brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. NOTE (2): Evaluate residuals of aortic and large arterial bypass surgery or arterial graft as arteriosclerosis obliterans. NOTE (3): These evaluations are for involvement of a single extremity. If more than one extremity is affected, evaluate each extremity separately and combine (under § 4.25) using the bilateral factor (§ 4.26), if applicable. In every instance where the schedule does not provide a zero percent evaluation for a DC, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). At a VA examination in November 2003, the Veteran had complaints of foot pain. He related that he walked six to eight miles a day. His peripheral pulses were 1+ in the right foot but the posterior tibial pulse could not be palpated in the left foot and the dorsalis pedis in the left foot was trace. The examiner diagnosed early PVD but no intermittent claudication. A VA progress note in February 2004 at an annual diabetic foot screen noted the pulses were bilaterally palpable at the dorsalis pedis and posterior tibialis. The Veteran testified in May 2007 as to the symptoms related to his PVD of his lower extremities and its affect on his activities. At a VA examination in April 2009, the Veteran related having calf claudication when he walked 60 to 70 yards. After resting for five or ten minutes until it went away, he could then get up and walk again. He had not had any surgical procedures regarding the vascular supply to his legs. He had not had any amputations or ulcerations. On clinical examination, his femoral arteries were 1+ bilaterally. The right popliteal pulse was trace and the left popliteal was 2+. The posterior tibial and dorsalis pedis pulses in the left foot were each 2+ and in the right foot 1+. There was hair loss over the legs. There was no swelling and the legs and feet were warm to touch. His skin and feet were not remarkable. The diagnosis was of PVD of the lower extremities. The examiner noted that the Veteran's extremities had no atrophic changes. There were no dystrophic nails. The findings from a lower extremity arterial examination on May 5, 2009, disclosed an ankle/brachial index of 1.16 for the right lower extremity and 1.18 for the left lower extremity. Digit pressure of each lower extremity was 110. The examiner reported the ankle/brachial indexes and digit pressures were within normal limits bilaterally. VA outpatient treatment notes in December 2009, March 2010, and October 2010 indicate that bilateral radial pulses, as well as the dorsalis pedis and posterior tibial pulses were two plus; hair was noted on the feet and toes. Radial and/or posterior tibial pulses were two plus when evaluated from August to November 2011. On a VA medical examination in July 2010, the Veteran reported he had no claudication symptoms at all at that time. He further indicated that he was able to walk about 100 yards before stopping due to foot arthritis, as opposed to calf discomfort. Vascular examination revealed normal pulses in the radial dorsal pedalis arteries, bilaterally. Toenails were normal. Further VA examination in August 2012 revealed normal dorsalis pedis and posterior tibial pulses. Peripheral edema was absent. Review of the evidence indicates that at times during the period from November 24, 2003, to May 4, 2009, there is a showing of diminished peripheral pulses of each lower extremity, as well as hair loss and reports of claudication walking 60-70 yards. The foregoing are among the criteria for assignment of ratings of 20 and 40 percent, but they are accompanied also by the Veteran's report in 2003 of walking up to eight miles daily and the specific determination in 2003 that claudication was absent. Moreover, the claudication referenced by the Veteran himself in April 2009, which is competent, credible, and probative, as occurring at 60-70 yards was not specifically indicated to occur on a flat surface at a speed of 2 miles per hour. The 40 percent rating is contingent upon the presence of claudication while walking for a specified distance, speed, and grade, and while there is a showing of some hair loss, the absence of hair is not demonstrated. On that basis, and with due consideration of the provisions of 38 C.F.R. § 4.7, initial ratings of 20 percent for PVD of each lower extremity are assigned from November 24, 2003, to May 4, 2009. On and after May 5, 2009, a preponderance of the evidence indicates that not more than a 0 percent schedular evaluation is for assignment for PVD of either lower extremity. Ankle/brachial indexes obtained on arterial testing performed on May 5, 2009, were inconsistent with a compensable evaluation for either lower extremity and from that date, there is no indication of leg claudication, pulse abnormality, hair loss, thin skin, dystrophic nails or other abnormality warranting other than a 0 percent evaluation for PVD of either leg. In all, the record supports the assignment of 20 percent ratings for PVD of each lower extremity from November 24, 2003, to May 4, 2009, which when implemented by the RO will be subject to the bilateral factor. A preponderance of the evidence is against assignment of more than 0 percent initial ratings for PVD of each lower extremity on and after May 5, 2009. Fenderson, Ortiz, Gilbert, all supra. PN The Veteran asserts that his peripheral neuropathy of the lower extremities is worse than shown by the assigned staged ratings. His diabetic peripheral neuropathy of each lower extremity has been rated under DC 8699-8620. Each disability is rated by analogy under a DC for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2012). The RO determined that the DC most analogous to the Veteran's peripheral neuropathy of the lower extremities is DC 8620, which pertains to neuritis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8620. The Board can find no other more appropriate code to use in rating these disabilities. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2012). 38 C.F.R. § 4.124a, DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and, therefore, neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. DC 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of that nerve. Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. At a VA examination in November 2003, the Veteran related that he walked six to eight miles per day and his feet were painful, numb and tingled. He had to do visual walking at times. He had a loss of sensation and two point discrimination. The sensation loss was pinprick and touch mid-foot and beyond. He had no vibratory sensation in the toes. Vibratory sensation at the ankles was fair. The examiner diagnosed profound peripheral neuropathy and that, at times, the Veteran did do visual walking. A VA progress note in February 2004 at an annual diabetic foot screen noted there was no evidence of compromised skin integrity or tinea. Sensation was intact to monofilament testing. A February 2005 VA report of an electromyogram (EMG) noted that on examination the Veteran had full strength in his legs, decreased sensation in the bilateral toes to each mid-ankle, and right ankle jerk absent. The interpretation of the EMG study was that it was abnormal and provided evidence for axonal loss affecting both motor and sensory nerves of the right lower extremity. The examiner commented that the findings were consistent with a sensorimotor peripheral neuropathy. The left lower extremity was not studied per the Veteran's request. In May 2005, the results of the EMG were reviewed, noting that the report indicated sensory-motor neuropathy in the lower extremities. The Veteran was able to walk on his heels and toes without motor weakness. His right ankle jerk was depressed. VA outpatient treatment records show that in April 2006 the Veteran complained of increased pain in his feet which made ambulation difficult. In December 2006 when seen at a VA pain clinic the Veteran related that he occasionally experienced burning pain in his feet attributed to his diabetes. His legs had no gross motor deficits and good active range of motion bilaterally. At a January 2007 VA primary care visit, on examination, there were no findings of paresthesias or paralysis. The Veteran testified in May 2007 as to the symptoms related to his peripheral neuropathy of his lower extremities and its effects on his activities. Various lay statements were received into the record in March 2009 as to the significant disablement of the Veteran, citing his complaints of back and foot pain and vision problems and their effects. At a VA examination on April 7, 2009, the Veteran related that he had not had any paralysis. He had good movement of his lower extremities and good muscle tone. He did not have any history of muscle atrophy. He complained of burning, numbness, tingling, and loss of sensation over his feet that interfered with his ability to walk very much. On clinical examination in April 2009 his left knee jerk was 1+ and his right was 2+. Ankle jerks were 1+ bilaterally. He did have sensory loss with monofilament testing. That involved all five toes and up to the mid-foot bilaterally where he had decreased sensation. In addition, proprioception was diminished in the feet. Muscle tone and strength was relatively normal. The diagnosis was of peripheral neuropathy of the bilateral lower extremities. The VA examiner commented that the only functional impairment from the Veteran's diabetes at that time related to his peripheral neuropathy. His physical activities were restricted as the result of his peripheral neuropathy in that he could not do very much walking. He did not use assistive devices. There was no effect on his occupation or daily activities. There was no pain on motion and no limitation during flare-ups. The examiner opined that the Veteran's peripheral neuropathy would be considered moderate. On a VA medical examination on July 15, 2010, the Veteran complained of burning and tingling from the lower third of his calves distally to the feet, without sensory deficit or muscle atrophy bilaterally. On objective evaluation, strength of the lower extremities was 5/5. Monofilament testing was normal until the distal one-third of the calves was reached, from which point to the toes, sensation was reduced to one of two. Normal proprioception of the great toes was in evidence. Gait and walk were normal; no Babinski or clonus was present. Mild peripheral neuropathy of the lower extremities due to diabetes mellitus was diagnosed. VA outpatient treatment records indicate that muscle strength of the lower extremities in March 2010 was 5/5 and that sensation of the lower extremities in October 2010 was normal. On the basis of the Board's review of all of the evidence of record, it is found that staged ratings are for assignment, a single set for the period prior to July 15, 2010, and another set for the period on and after July 15, 2010. During the initial period, assessments of moderate to profound neuropathy of the lower extremities were offered by examining clinicians, although the clinical data recorded during that time were fairly consistent, with identification of both sensory and motor impairments and the absence or reduction in normal reflexes at the knees and ankles. There is also for consideration the Veteran's own statement in 2003 that he was walking up to eight miles daily, which tends to contraindicate the presence of more than a moderately severe incomplete paralysis on either side. On that basis and in due consideration of the provisions of 38 C.F.R. § 4.7, the level of disablement is found to reach that of moderately severe incomplete paralysis of each lower extremity, warranting 40 percent evaluations for each for the period prior to July 15, 2010, subject to the bilateral factor when the ratings are implemented. A preponderance of the evidence is against the assignment of more than 40 percent ratings prior to July 15, 2010, in the absence of a showing of severe incomplete paralysis accompanied by marked muscle atrophy or complete paralysis with foot drop and total movement loss of the muscles below the knees. For the period on and after July 15, 2010, not more than moderate incomplete paralysis of the sciatic nerve is identified. Examination on that date revealed not more than mild PN of the legs that was exclusively sensory and the record does not thereafter demonstrate more than moderate incomplete paralysis of the sciatic nerve was present on either side. As such, for the period on and after July 15, 2010, a preponderance of the evidence is against the assignment of more than 20 percent schedular evaluations for PV of each lower extremity. Fenderson, Ortiz, Gilbert, all supra. Extraschedular Consideration The Board must adjudicate the issue of whether referral for consideration of extraschedular ratings is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). A determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this instance, the Veteran's service-connected CAD, PVD, and PN are fully accounted for under the applicable DCs. The ratings assigned are commensurate with the level of disablement shown as to each disability and there is otherwise no indication that there are present signs or symptoms beyond the scope of the applicable rating criteria. Rather, the rating criteria describe adequately and contemplate the current disability level of the disorders in question, and, as such, the question of extraschedular consideration need not proceed further, as there exists no basis for the assignment of extraschedular ratings with respect to any period under consideration herein. ORDER A rating in excess of 10 percent for CAD for the period from September 5, 2002, to April 6, 2009, is denied. A rating of 60 percent, but none greater, for CAD from April 7, 2009, to July 14, 2010, is granted, subject to those provisions governing the payment of monetary benefits. Initial ratings of 20 percent, but none greater, for PVD affecting each lower extremity are granted, subject to those provisions governing the payment of monetary benefits, for the period from November 24, 2003, to May 4, 2009. Initial compensable ratings for PVD of each lower extremity for the period on and after May 5, 2009, are denied. Initial ratings of 40 percent, but none greater, for PN affecting each lower extremity are granted, subject to those provisions governing the payment of monetary benefits, for the period prior to July 15, 2010. Initial ratings of more than 20 percent for PN affecting each lower extremity for the period on and after July 15, 2010, are denied. REMAND By its May 2012 remand, the Board requested clarification of a medical opinion offered in July 2010 in connection with a VA medical examination involving the Veteran's low back. Three specific questions for the examiner were posed in the Board's remand and the Board also requested that the VA examiner discuss radiographic evidence from 1991 as to the presence of mild degenerative disc disease. The VA examiner in a June 2012 addendum attempted to address the questions posed, but the responses provided are inadequate in that no additional opinion was provided as to the likelihood that the inservice back complaints resulted in a chronic low back disorder or whether the inservice back complaints were indicative of an asymptomatic condition since 1968 or 1969. Remand to ensure substantial compliance with the terms of the prior remand is required. Stegall, supra (remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order). Regarding the claim for an initial rating in excess of 20 percent for AION prior to September 27, 2005, the Board requested clarification from the VA's Director of the Compensation and Pension (C&P) Service as to his/her prior assignment of a 20 percent evaluation utilizing schedular and extraschedular criteria. This was then to be followed by a readjudication of that claim. On remand, the case was not referred to the Director of the VA's C&P Service, but was reviewed by the AMC's decision review officer (DRO), who determined in December 2012 that there was no extraschedular entitlement to a rating in excess of 20 percent for AION for the period prior to September 27, 2005. This contradicts directly the prior C&P determination that a 20 percent rating assigned was extraschedular in nature. Moreover, the DRO's conclusion, as set forth in a written memorandum of December 2012, was not considered or even referenced in the supplemental statement of the case of December 2012 that was subsequently compiled by the same DRO. Remand for corrective actions is mandated under Stegall. Deferral of further consideration of the Veteran's TDIU is warranted, pending the RO's implementation of the ratings herein assigned and the completion by the AMC of the development actions herein outlined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, this portion of the case is REMANDED for the following actions: 1. Return the claims file to the VA examiner who conducted a joints and spine examination of the Veteran in July 2010. If the examiner is no longer available, schedule the Veteran for a new VA spine examination. The claims folder must be reviewed in conjunction with the examination. The VA examiner should clarify the July 2010 medical opinion, as modified in June 2012, by addressing each of the following questions and providing a complete rationale for each opinion: a) Is it at least as likely as not (50 percent or greater probability) that the inservice back complaints in October 1968 and August 1969 resulted in a chronic low back disability? b) Was an asymptomatic low back disorder of the Veteran present since 1968/1969? Use of the at least as likely as not language where indicated is required. The VA examiner is advised that the phrase at least as likely as not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a proposition as to find against. More likely and as likely support the contended relationship; less likely weighs against the claim. 2. Refer the matter of whether a rating in excess of 20 percent for right eye AION should be assigned prior to September 27, 2005, to the Director of the VA's C&P Service for an explanation of the factors and rationale used in assigning the 20 percent evaluation, to include extraschedular considerations. Copies of any reference tables or manual provisions relied upon must be provided. 3. Lastly, review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action by the appellant is required until he receives further notice. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs