Citation Nr: 1311830 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-25 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable disability rating for peripheral neuropathy of the right lower extremities, effective prior to October 12, 2011. 2. Entitlement to an initial compensable disability rating for peripheral neuropathy of the left lower extremities, effective prior to October 12, 2011. 3. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, effective from October 12, 2011. 4. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, effective from October 12, 2011 5. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD, and assigned a 50 percent rating, effective from January 20, 2006. This matter further comes before the Board from a January 2010 rating decision in which the RO established service connection for peripheral neuropathy of each lower extremity, as non-compensable complications of the service-connected diabetes mellitus. Previously, the RO had granted service connection for diabetes mellitus and assigned a 10 percent disability rating, effective from May 8, 2001, and a 20 percent disability rating, effective from March 25, 2004. In the January 2010 rating decision, however, after establishing service connection for peripheral neuropathy of the lower extremities, and considering the severity of the service-connected peripheral neuropathy of the lower extremities, the RO assigned a noncompensable (0 percent) evaluation for that complication. Therein, the RO also noted that in evaluating diabetes mellitus and its complications, the complications of diabetes were not separately evaluated unless the complications themselves were compensable, or at least 10 percent disabling. The RO further noted that any complication that is not compensable is considered part of the diabetes process and is included in the disability evaluation assigned for the diabetes. Thereafter, by April 2012 rating decision, the RO granted a separate 10 percent disability rating for peripheral neuropathy of the right lower extremity, effective from October 12, 2011, and a separate 10 percent disability rating for peripheral neuropathy of the left lower extremity, effective from October 12, 2011. In January 2013, the Veteran testified at a Travel Board hearing at the RO, before the undersigned Veterans Law Judge. A transcript of that hearing has been included with the Veteran's Virtual VA efolder. FINDINGS OF FACT 1. At the Travel Board hearing in January 2013, which was prior to a promulgation of a decision, the Veteran indicated he wished to withdraw his appeal regarding the issues of entitlement to a higher rating for PTSD, and entitlement to increased ratings for peripheral neuropathy of the right and left lower extremities, from October 12, 2011. 2. Prior to October 12, 2011, the Veteran's peripheral neuropathy of the right and left lower extremities symptomatology more closely approximated that of mild paralysis of the external popliteal nerve, and included intermittent complaints of numbness and tingling, with negative sensory examinations. CONTINUED NEXT PAGE CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal, by the Veteran, regarding the issues of entitlement to a higher rating for PTSD, and entitlement to increased ratings for peripheral neuropathy of the right and left lower extremities, from October 12, 2011, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Prior to October 12, 2011, the criteria for a 10 percent disability rating for peripheral neuropathy of the right lower extremity, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.119 Diagnostic Code 7913, 4.124a Diagnostic Code 8714 (2012). 3. Prior to October 12, 2011, the criteria for a 10 percent disability rating for peripheral neuropathy of the left lower extremity, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.119 Diagnostic Code 7913, 4.124a Diagnostic Code 8714 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims At the Travel Board hearing in January 2013, the Veteran indicated he wished to withdraw the appeals for entitlement to a higher rating for PTSD, and entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right and left lower extremities, from October 12, 2011. In both instances he indicated that he was satisfied with the assigned ratings. Hearing Transcript (T.) at page 2. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the veteran or by his authorized representative. 38 C.F.R. § 20.204. As the Veteran has withdrawn these appeals, there remain no allegations of errors of fact or law for appellate consideration. Thus, the Board does not have jurisdiction to review these appeals. II. Duties to Notify and Assist Before addressing the merits of the remaining issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Although the Board has reached a favorable decision herein by assigning a 10 percent rating bilateral peripheral neuropathy prior to October 12, 2011, it is also acknowledged that the rating schedule provides for higher ratings that could be assigned. The U.S. Court of Appeals for Veterans Claims (Court) has held, on a claim for an original or an increased rating, the veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and, therefore, such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). However, in the instant case, as discussed above, the Veteran expressed his satisfaction with the 10 percent rating that had been assigned for his peripheral neuropathy from October 12, 2011, and actually withdrew this aspect of his appeal. He similarly stated that the assignment of a 10 percent rating for the period prior to October 12, 2011 would satisfy his appeal. T. at page 4. Thus, in this particular case, the assignment of a 10 percent rating for peripheral neuropathy of the right and left lower extremities for the period prior to October 12, 2011 constitutes a complete grant of the benefits sought. Further discussion of the VA's duties to notify and assist is therefore moot. III. Laws and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout this time period, staged ratings may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings have been assigned for the peripheral neuropathy disabilities, with the compensable ratings granted effective October 12, 2011. Previously, the RO had granted service connection for diabetes mellitus and assigned a 10 percent disability rating, effective from May 8, 2001, and a 20 percent disability rating, effective from March 25, 2004. By January 2010 rating decision, the RO established service connection for peripheral neuropathy of each lower extremity, as non-compensable complications of the service-connected diabetes mellitus, pursuant to Diagnostic Code 7913, and also continued the 20 percent rating for the service connection diabetes mellitus, with erectile dysfunction and mild peripheral neuropathy of both feet, also under Diagnostic Code 7913. In this regard, noncompensable complications are considered part of the diabetic process under that code. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (2). Compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent disability rating. Id. Thereafter, separate 10 percent ratings were granted for peripheral neuropathy of the right and left lower extremities in the April 2012 rating decision, effective October 12, 2011, pursuant to Diagnostic Code 8621. Diagnostic Code 8621 pertains to neurological impairment of the external popliteal (common peroneal). The criteria provides for a 10 percent rating for mild incomplete paralysis, neuritis, or neuralgia of the external popliteal nerve; a 20 percent rating is provided for moderate incomplete paralysis, neuritis, or neuralgia; and a 30 percent rating for severe incomplete paralysis, neuritis, or neuralgia. Id. A 40 percent rating requires complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8621. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. Id. Neuritis, cranial or peripheral, 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. 38 C.F.R. § 4.123. Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Words such as "mild", "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. IV. Discussion Review of the record prior to October 12, 2011 reveals that the Veteran underwent VA examinations in July 2003 and in September 2009 regarding his peripheral neuropathy of the lower extremities. Of record, to include in the claims folder and in the Veteran's Virtual VA folder, are also numerous private and VA treatment records for the Veteran, which primarily address treatment he received for his diabetes, related complications, and other unrelated conditions. On a VA examination in July 2003, the Veteran reported occasional numbness and tingling in his feet, that was worse at night time. Physical examination showed normal sensation to pinprick, and light touch and vibratory sense to the plantar surfaces of both feet. The diagnosis was normal examination of the feet, and no peripheral neuropathy present. Subsequent VA treatment records showed that the Veteran continued to be seen for his AODM, diet controlled. In July 2005, he complained of heel pain and was taking NSAIDs and doing stretching with minimal results. An x-ray revealed a calcaneal spur. In October 2005, he continued to complain of heel pain the diagnoses included plantar fasciitis. On a VA examination in September 2009, it was noted that the Veteran was diagnosed with diabetes mellitus in January 2001, his current treatment for diabetes was restricted carbohydrate diet. He took an oral hypoglycemic, and was to begin insulin in the past year but was afraid of needles. He reported on and off tingling, and numbness only in the feet. The sensations were noted to be intermittent, and more noticeable while watching television. There was no prescribed treatment, and he would massage them. No specific nerves were involved, and it was noted that his foot symptoms may interfere with prolonged standing or walking. Examination revealed sensation to monofilament and vibration was intact in the feet. There was no muscle wasting or atrophy. Examination revealed his strength was 5/5 in muscle groups of the lower extremities, and deep tendon reflexes were intact and equally. The diagnoses included diabetes mellitus, type 2, and mild, early peripheral neuropathy in both feet. A February 2010 VA podiatry consultation revealed the Veteran had complaints regarding right foot discomfort starting three weeks prior, mainly with walking or standing. Physical examination revealed palpable pedal pulses bilaterally, the skin was normally warm to touch, no erythema, epicritic and protective sensation were intact bilaterally, and no Tinel's or Valleix signs with percussion of ankle and pedal nerves. Muscle strength was 5/5 in all planes. The diagnosis included discomfort associated with right foot plantar fibroma and continued resolution of plantar fasciitis on the right. The VA podiatrist opined that the Veteran's plantar fibroma was not a direct result of his diabetes mellitus. On an April 2010 VA treatment record, the Veteran's review of symptoms included a notation of history of diabetic neuropathy of the bilateral feet and ankles. A physical examination of the neurologic system revealed no focal deficits, and he was able to walk heel to toe with a steady gait. The diagnoses included diabetic peripheral neuropathy of feet and ankles by history. In determining whether separate compensable ratings are warranted for peripheral neuropathy of the lower extremities, prior to October 2011, the Board notes that prior VA examinations and treatment records basically reported normal findings pertaining to the lower extremities. On the VA examination in 2009, although early mild early peripheral neuropathy of the feet was diagnosed, neurological examination was basically normal. VA outpatient treatment records, while noting a history of peripheral neuropathy, also fail to document abnormal findings of symptomatology in the lower extremities. However, the fact remains that VA examination reports and treatment records prior to October 2011 do reveal that the Veteran rendered complaints of numbness and tingling in the feet. The Veteran also provided competent testimony with regard to symptomatology. He recalled symptoms of numbness and tingling that pre-dated his formal diagnosis of peripheral neuropathy by many years. His wife similarly provided competent testimony with respect to her recollection of the Veteran stumbling as a result of losing feeling his feet. The undersigned found this testimony to both credible and probative. Both the Veteran and his wife clearly related symptoms and observations, which they were competent to make, that are essentially the same to those that he experiences at the present day. Thus, having reviewed the foregoing, and resolving all doubt in his favor, the Board concludes that for the period prior to October 2011, the competent evidence of record reflects at most mild symptoms, that were wholly sensory, associated with the lower extremities. The Veteran's symptoms represented mild, but not moderate, symptoms that correlate with the assignment of a 10 percent rating for this period prior to October 12, 2011. The Board again acknowledges that a rating in excess of 10 percent for peripheral neuropathy is possible under the aforementioned rating criteria. However, as also discussed, the Veteran very clearly indicated that the award of a 10 percent rating for peripheral neuropathy for the period prior to October 12, 2011, would satisfy his appeal and thereby constitute a full grant of the benefits sought. T. at page 2 and 4. Further discussion as to whether or not a rating in excess of 10 percent is warranted, to include on an extraschedular basis, is moot. ORDER The appeals for entitlement to a higher rating for PTSD, and entitlement to increased ratings for peripheral neuropathy of the right and left lower extremities, from October 12, 2011 are dismissed . A separate 10 percent rating for peripheral neuropathy of the right lower extremity, effective prior to October 12, 2011, is granted, subject to the applicable law governing the award of monetary benefits. A separate 10 percent rating for peripheral neuropathy of the left lower extremity, effective prior to October 12, 2011, is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs