Citation Nr: 1312043 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 07-15 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to increased initial ratings for left lower extremity peripheral neuropathy, rated as 10 percent disabling prior to January 27, 2011, and as 20 percent disabling as of that date. 2. Entitlement to increased initial ratings for right lower extremity peripheral neuropathy, rated as 10 percent disabling prior to January 27, 2011, and as 20 percent disabling as of that date. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which assigned an initial rating of 10 percent for peripheral neuropathy of each lower extremity, effective November 3, 2006. The claims were remanded by the Board in January 2011 for additional development. In a March 2012 rating decision, the ratings assigned for peripheral neuropathy of the left and right lower extremities were increased to 20 percent, effective January 27, 2011. This did not satisfy the Veteran's appeal. The Board previously referred a claim for service connection for a shoulder disorder as secondary to peripheral neuropathy of the lower extremities to the originating agency. The record before the Board does not show that the claim has been adjudicated by the originating agency. Therefore, the claim is again referred to the originating agency for appropriate action. FINDINGS OF FACT 1. Prior to October 21, 2010, the impairment from the Veteran's bilateral lower extremity peripheral neuropathy more nearly approximated mild incomplete paralysis of the sciatic nerve than moderate incomplete paralysis of the nerve. 2. As of October 21, 2010, the impairment from the Veteran's bilateral lower extremity peripheral neuropathy has most closely approximated moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation greater than 10 percent for left lower extremity peripheral neuropathy have not been met prior to October 21, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for an initial evaluation greater than 10 percent for right lower extremity peripheral neuropathy have not been met prior to October 21, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for an initial 20 percent evaluation, but no higher, for left lower extremity peripheral neuropathy have been met as of October 21, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for an initial 20 percent evaluation, but no higher, for right lower extremity peripheral neuropathy have been met as of October 21, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters sent in November 2006 and March 2007. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claims. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of either claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran appropriate examinations to determine the severity of his disabilities. There was also substantial compliance with the Board's January 2011 remand as additional VA treatment records were obtained and the Veteran was afforded an appropriate VA examination. Neither the Veteran not his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to these claims. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). 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. Neuralgia of a peripheral nerve 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. The term incomplete paralysis, with 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. 38 C.F.R. § 4.124a, Diagnostic Code 8520 provides the rating criteria for impairment of the sciatic nerve. Disability ratings of 10 percent, 20 percent and 40 percent are assigned 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. 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. The words "mild," "moderate," "moderately severe, "and "marked" are not defined in the Rating Schedule or in the regulations during this time period. As such, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Service connection for left and right lower extremity peripheral neuropathy was granted in the March 2007 rating decision that is the subject of this appeal. Separate 10 percent ratings were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 effective November 3, 2006. As noted in the Introduction, ratings of 20 percent were later assigned effective January 27, 2011. The Veteran contends that he is entitled to increased ratings for the disabilities because he has bilateral foot pain and numbness and because his conditions would be worse without medication. He reports continuous numbness in his right leg that had caused him to fall and asserts that he has been fitted with special shoes to help him keep better balance. He indicates that he has lost some time from work and finds it difficult to stand and perform his job as a result of his bilateral peripheral neuropathy. The Veteran also reports difficulty with some activities of daily living, such as mowing the lawn, shoveling snow, and doing normal household chores. He has reported recent falls due to his bilateral peripheral neuropathy. See VA Form 9 received May 2007; VA Forms 21-4138 dated in January 2008, January 2011 and June 2011; and a statement in support of claim dated in August 2008. In a statement dated October 21, 2010, he alleged that his disabilities had increased in severity since the filing of his claim in 2007. The Veteran underwent a VA peripheral nerves examination in February 2007, at which time his claims folder and electronic medical records were reviewed. He reported that he began having some trouble with unusual sensation in his legs around 2002, but did not complain of the problems with the sensation in his feet until March 2006. Prior to that visit, sensation had been intact in both feet. Since then, sensation had continued to worsen bilaterally. The Veteran indicated that he felt as though his socks were curled up under his toes in both feet. When he first gets up in the morning, his feet are numb and it is difficult to walk. He has to be very careful in ambulating, otherwise he will fall. The Veteran reported that his feet ached when he has to stand for a long time but that he was able to drive and did have feeling in his feet in the sense that he could tell where his feet were and could sense the pedals without difficulty. He reported that medication (Gabapentin 300 milligrams two times daily with an additional 100 milligrams in between) had made some difference in his symptoms. The Veteran indicated that he had retired from Diebold Incorporated in November 1998 and since then, had been working for Enterprise washing cars and delivering them to clients. He reported having to cut back from full time work to working every other day because he had not been able to stand on the concrete all day. The Veteran also indicated that he had to be careful in performing his activities of daily living but was able to perform chores around the house. He wore warm, insulated boots and warm socks when out in cold weather. Physical examination revealed that the Veteran walked without a limp and was able to tandem walk without difficulty. Although he was unable to heel walk, he was able to walk on his toes. Romberg was negative, lower extremity muscle strength was 5+ bilaterally, and deep tendon reflexes were 2+ patellar and Achilles bilaterally. Sensation was decreased in both feet in the distal aspect, both on the plantar and upper surfaces. The sensation was actually intact to both sharp and microfilament; however, it was diminished in those areas. Proprioception was good bilaterally. His feet were both warm with good color and excellent capillary refill. The Veteran was diagnosed with mild peripheral neuropathy of the feet. The Veteran underwent a neurology consult in December 2007 with a chief complaint of right foot numbness. It was noted that he had fallen two days prior when walking outside and felt numbness mostly on the dorsum of his foot. He reported a similar incident earlier in June but did not fall as badly that time. The Veteran indicated that the numbness lasted less than a minute and seemed to have gone away by the time he fell and was able to get up. He complained of constant numbness of the bottom of both feet. The Veteran indicated that he takes Gabapentin, which helps. Motor examination of the muscles was normal and deep tendon reflexes were 2+ in the lower extremities with downgoing plantars. Sensory examination revealed decreased sensation to light touch and pain to palpation in the right leg L5 distribution; vibration and proprioception were intact. Coordination revealed normal heel to shin. The Veteran was able to walk on his toes and heels, and from heels to toes, without any problem. Romberg was negative. The impression was right foot numbness and weakness with unclear etiology, likely peripheral. The Veteran was seen in the emergency department one week after the December 2007 neurology consult after a fall two days prior. He again reported numbness in his right foot while walking caused him to fall. The Veteran stated that the numbness involved the entire foot up into the ankle and that the sensation lasted several minutes before resolving. He denied any other focal neurologic symptoms. Neurological examination revealed that motor strength appeared to be 5/5 in both lower extremities. Romberg was negative. The neurology department was contacted and came down to evaluate the Veteran. It was noted that they felt his symptoms were likely peripheral. The diagnostic impression made by the emergency department was peripheral neuropathy. Podiatry outpatient notes dated in March 2010 and May 2010 reveal a chief complaint of bilateral foot burning, worse at night. Examination revealed that the Veteran was unable to feel a 10 gram monofilament five out of five times in both feet. There was reduced position sense in the bilateral hallux toes but no gait abnormalities. There was good muscle strength and good range of motion bilaterally. The assessment was neuropathic pain in the feet. In March 2010 it was noted that it was only improved some with Gapapentin at 400 milligrams twice daily. In May 2010 it was noted that the pain was only improved slightly. A December 2010 primary care note revealed that the Veteran was seen with complaint of numbness of his feet, right more than left. He indicated that his feet hurt, especially with prolonged standing, and that he had had episodes of his right leg going numb. Physical examination revealed that both feet were numb to touch. Lower extremity deep tendon reflexes were depressed bilaterally. There was reduced muscle strength of the right ankle compared to the left; otherwise lower extremity strength was equal bilaterally. The impression was symptoms of peripheral neuropathy. The Veteran underwent a neurology consult on January 12, 2011. He presented with intermittent paresthesias involving the soles of his feet, more on the right, with an abnormal sensation, "of a foreign object being in contact with the sole area" at times and pain involving the dorsal aspect of the right foot with associated painful muscle cramps involving the foot muscles, again on the right only. A focused neurological examination showed normal strength and muscle bulk, decreased sensation distal to proximal gradient, more pronounced on the right; and symmetrical reflexes at the patella (in the range of three) and trace only at the ankle. The summary was that left peroneal and tibial motor nerve responses were normal and right peroneal motor nerve studies showed borderline prolonged distal latency with normal amplitude and conduction velocity. The right tibial motor response was normal. Bilateral superficial peroneal sensory nerve studies showed normal amplitudes and decreased conduction velocities. Bilateral sural sensory responses showed borderline amplitudes and mildly decreased conduction velocities. Electromyograph (EMG) sampling of selected muscles of the left L2 to S1 myotomes showed mild and chronic neurogenic changes involving primarily the extensor hallucis longus and minimally to the tibialis anterior. EMG sampling of selected muscles of the right L2 to S1 myotomes and low lumber muscles showed mild chronic and ongoing neurogenic changes involving the tibialis anterior, gastrocnemius, extensor hallucis longus, and flexor digitorum longus muscles. The impression, in pertinent part, was mild, chronic, fairly symmetrical, predominantly sensory, polyneuropathy. The Veteran was referred to the neurology clinic on January 27, 2011, for evaluation and treatment of polyneuropathy per EMG. The Veteran reported that approximately three years ago he developed rather suddenly right foot numbness and missed a step, falling, and hitting his hip. At that point, he was evaluated in the emergency room, was seen by neurosurgery and stroke was ruled out. The Veteran was diagnosed with neuropathy and started on Gabapentin that apparently helped a great deal at the beginning. The Veteran stated that over the years he developed tingling, numbness, and a constant sense of having something underneath his feet that is quite discomforting. He reported occasional cramps in his legs, more so in the right one, and especially at night when it wakes him up from sleep. However, lately, he had been having this calf pain even during the daytime, which caused him to stop working and go home. He was given Tramadol for this pain and he had been taking this for about a year now with unsatisfactory and just temporary relief of these leg cramps. In addition, he described numbness not only in his feet, but also in his hands, more so in the right one, with decreased dexterity and dropping things out of his right hand. The Veteran also described some difficulty walking and taking stairs. He appeared to have significant trouble on uneven ground and in a dark environment. He did sustain a few falls with no major injury. Neurological examination revealed that muscle tone was slightly increased in the right lower extremity and mild atrophy of the interossei in both feet was present. Muscle strength was as follows: right/left iliopsoas 5-/5, quadriceps 4+/5, anterior tibialis 5-/5, hamstrings 5-/5, gastrocnemius 5/5 with a slight giveaway component secondary to pain in the right lower extremity. The sensory examination showed decreased vibratory sensation in both feet, but significantly decreased pinprick sensation in a glove and stocking distribution up to mid calf level in the legs, slightly more pronounced in the right than in the left. Deep tendon reflexes were as follows: right/ left knee jerks 2/1, ankle jerks 0/0 with bilaterally negative Babinski signs. Heel-to-shin testing was bilaterally normal. The Veteran walked with a slightly broad-based gait and a little limp in the right secondary to leg pain. He had difficulty with tandem gait. Romberg was not present. The impression was peripheral, predominantly sensory, polyneuropathy most likely secondary to diabetes. However, other treatable conditions had to be ruled out. The Veteran underwent another VA peripheral nerves examination in February 2011, pursuant to the Board's January 2011 remand, at which time his claims folder and electronic medical records were reviewed. He reported noticed tingling in the toes and sensation that there was something under the toes. This started in the left foot but progressed to right foot as well and now the right foot was worse. The Veteran indicated that his condition had gotten progressively worse and that his current treatment was medication (Baclofen and Gabapentin) with good response. The Veteran denied a history of hospitalization or surgery; peripheral nerve trauma; and peripheral nerve neoplasm. He did report balance and coordination problems, described as feeling like he misses a step, and reported falling about two years ago. Mobility problems in the form of standing were also noted. The examiner noted an August 2008 orthotics prosthetics consult note indicated that the Veteran was in need of bilateral x-depth shoes to protect and accommodate feet secondary to diabetes and of foot orthotics for support due to neuropathy and two falls. There was no drop foot but the Veteran was noted to be unaware where his right foot is in gait cycle. A detailed reflex examination revealed hypoactive bilateral knee and ankle jerks. Plantar (Babinski) flexion was normal. Sensory examination of the lower extremities revealed normal vibration but decreased pinprick in the distal third of both the lower extremities. Position sense and light touch were normal but there was dysesthesias in the right calf and monofilament testing was decreased in the forefeet. A detailed motor examination revealed active movement against some resistance with bilateral hip flexion and extension, knee flexion and extension, ankle dorsiflexion and plantar flexion, and great toe extension. Muscle tone was normal and there was no muscle atrophy. Gait was abnormal, described as a forward leaning posture with a slight limp in right leg. There were no imbalance or tremor; and no evidence of fasciculation. No function of any joint was affected by the nerve disorder. Romberg was again negative. The examiner included the findings of a January 2011 nerve conduction study conducted in conjunction with a neurology consult. The summary was left peroneal and tibial motor nerve responses were normal. Right peroneal motor nerve studies showed borderline prolonged distal latency with normal amplitude and conduction velocity. The right tibial motor response was normal. Bilateral superficial peroneal sensory nerve studies showed normal amplitudes and decreased conduction velocities. Bilateral sural sensory responses showed borderline amplitudes and mildly decreased conduction velocities. The EMG sampling showing mild, chronic, fairly symmetrical, predominantly sensory polyneuropathy was also reported. It was noted that the Veteran was working part-time as a driver and car washer for a rental car business, which he had been doing for five to 10 years. He had had to cut back on the days he worked from five days a week to three days per week and had had to decrease the hours he worked per day from 10 and one-half to about six to eight. These changes were related to foot numbness, especially the right foot. The Veteran was diagnosed with peripheral neuropathy of the lower extremities. The effects on his occupational activities were noted to be decreased mobility, weakness/fatigue, and decreased strength. The condition also affected his activities of daily living in that he had limitations doing household chores and yard work such as mowing the lawn and shoveling. The Veteran also found it difficult to operate pedals of a car after driving three to four hours. The Veteran returned to the neurology clinic for follow-up regarding his polyneuropathy in May 2011. It was noted that when he was last seen on January 27, 2011, it had been recommended that he increase his medications. The Veteran stated that his leg control had improved as a result of implementing the recommendations. He denied pain and major cramps, although he may have a few mild ones in the morning. He still continued to feel kind of funny and described this as a sensation of having rolled up socks underneath his feet. The Veteran denied any recent falls and reported being physically active. On neurologic examination, muscle tone and bulk were normal in the lower extremities and he had just slight weakness distally on the right side only. Sensory examination showed decreased vibratory sensation in both feet as well as severely decreased pinprick sensation in glove and stocking distribution up to mid calf level in the legs, worse in the right than in the left. Deep tendon reflexes were symmetrically depressed and absent at the ankle level bilaterally. There was no dysmetria on heel-to-shin testing on either side. Gait was slightly broad-based but otherwise stable. Romberg was not present. The impression was diabetic peripheral neuropathy, significantly improved on the present combination therapy. The Veteran was seen for follow-up in the neurology clinic in July 2011. It was noted that no follow up had been recommended at the time of the May 2011 visit, but that the Veteran was complaining of increased leg cramps, especially at night. Neurologic examination revealed normal muscle tone and bulk in both lower extremities. Sensory examination showed decreased vibratory sensation, both ankles, and also decreased pinprick sensation in a glove and stocking distribution bilaterally up to the mid calf level in the legs. Deep tendon reflexes were depressed in the lower extremities and absent at the ankle altogether. There were no Babinski sign present and no dysmetria on bilateral heel-to-shin testing. Gait was minimally broad-based and the Veteran had difficulty walking in tandem. Romberg was not present. The impression was diabetic peripheral neuropathy, relatively stable on clinical grounds and responding well to Gabapentin; however, the Veteran has leg spasms, especially at night. The Veteran was seen for follow-up in the neurology clinic in August 2011. Since his last visit he felt his tingling and numbness had been pretty much the same. He still described a burning sensation, but did not describe any progression upward in either his lower extremities. It was noted that he had also been followed for muscle cramps located mainly in his calves, which had been very severe on his last visit but had decreased with medication and daily multivitamin tablet. Neurological examination revealed normal muscle tone bilaterally. Motor strength was 5/5 in the lower extremities; sensation was mildly decreased to pinprick just above his ankles; and reflexes were depressed in his lower extremities (about 1+). Romberg sign was negative and gait was normal. The assessment was peripheral neuropathy and muscle spasm. As explained below, the Board has determined that the increased rating of 20 percent for each lower extremity is warranted from October 21, 2010. The evidence pertaining to the period prior to that date does not support the assignment of an initial rating in excess of 10 percent for peripheral neuropathy of either lower extremity. The February 2007 VA examiner reported that the Veteran had mild peripheral neuropathy of the feet, a diagnosis made after physical examination revealed decreased, though intact, sensation to both sharp and microfilament in the distal aspect on the plantar and upper surfaces of both feet. None of the evidence pertinent to that period shows incomplete paralysis that more nearly approximates moderate than mild. The Board has determined that the increased ratings of 20 percent are warranted from October 21, 2010, because the Veteran alleged on that date that the disabilities had increased in severity and the increase in severity was confirmed by the subsequently prepared medical evidence. In this regard, the Board notes that deep tendon reflexes were depressed bilaterally at the time of a December 2010 primary care note, and that reflexes were trace at the ankles at the time of the January 12, 2011, neurology consult. The Board has also considered the Veteran's specific assertions pertaining to the symptomatology associated with his bilateral lower extremity peripheral neuropathy made on and after October 21, 2010, to include reports of pain, aching, tingling, burning, occasional cramps and numbness. The Veteran is not entitled to a rating in excess of 20 percent for his bilateral lower extremity peripheral neuropathy during the period beginning October 21, 2010. The Board acknowledges that reflexes were absent at the ankles at the time of the January 27, 2011, neurology consult and the May 2011 neurology consult, that bilateral knee jerk reflexes were hypoactive during the February 2011 VA examination, and that the January 27, 2011, neurology consult revealed mild atrophy of the interossei in both feet. The symptomatology exhibited by the Veteran's peripheral neuropathy of the bilateral lower extremity prior to and after the January 27, 2011, neurology consult, however, does not more nearly approximate "moderately severe" incomplete paralysis. Rather, muscle tone and bulk have consistently been normal, there is no evidence of motor deficits in the lower extremities, the February 2011 VA examination noted an absence of muscle atrophy, and the Veteran denied any progression of the burning sensation upward in either lower extremity at the time of the most recent neurology consult. In addition, although muscle strength was reduced in the right ankle in December 2010, it was otherwise equal bilaterally at that time and subsequent records reveal either normal or only slightly decreased overall muscle strength. Lastly, the January 2011 EMG contained an impression of predominantly sensory peripheral neuropathy and ankle jerk reflexes have not consistently been absent. Accordingly, a rating in excess of 20 percent is not warranted for either lower extremity during the period beginning October 21, 2010. Extra-schedular Consideration The Board has considered whether these claims should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As discussed above, the manifestations of the Veteran's peripheral neuropathy, to include pain, numbness, and tingling, and decreased reflexes, are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not in order. ORDER The Board having determined that the left lower extremity peripheral neuropathy warrants a 10 percent rating prior to October 21, 2010, and a 20 percent rating from that date, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. The Board having determined that the right lower extremity peripheral neuropathy warrants a 10 percent rating prior to October 21, 2010, and a 20 percent rating from that date, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs