Citation Nr: 1312152 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-45 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for peripheral neuropathy of the left lower extremity, rated as 20 percent disabling. 2. Entitlement to an increased evaluation for peripheral neuropathy of the right lower extremity, rated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from April 1969 to December 1971 and November 1974 to November 1978. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the appeal, in September 2010 the RO increased the Veteran's ratings for peripheral neuropathy of the right and left lower extremities from 10 percent to 20 percent each effective October 16, 2009, the date the Veteran filed the claim for an increased rating. However, the disability rating issues remain on appeal because the RO's actions do not constitute a full grant of the full benefits sought, and the Veteran has not expressed satisfaction with the September 2010 rating decision. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Throughout the period of appeal, the Veteran's peripheral neuropathy, left lower extremity, is manifest by no more than moderate, incomplete paralysis. 2. Throughout the period of appeal, the Veteran's peripheral neuropathy, right lower extremity, is manifest by no more than moderate, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy, left lower extremity, have not been met or approximated. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy, right lower extremity, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2009. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claim for an increased rating and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's VA treatment records and private treatment records identified by the Veteran. The Veteran also submitted statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in December 2009. The examiner, a medical professional listened to the Veteran's assertions. The examiner provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's representative asserted in a January 2011 statement that the December 2009 VA examination was inadequate because the examiner did not rate the severity of the peripheral neuropathy (i.e., mild, moderate, or moderately severe) and did not perform electromyographic (EMG) studies. The Board disagrees. The examiner performed a neurological evaluation of the Veteran's lower extremities including motor function and sensory function and made objective assessments of the motor function being normal, but the sensory function being abnormal. The Board can rely on these findings to determine the present severity of the Veteran's peripheral neuropathy. The rating schedule for neurological disorders does not define "mild," "moderate," "moderately severe," or "severe," other than to note that for wholly sensory involvement, the rating should be for no more than moderate. However, it is incumbent upon the Board to determine based on the available evidence of record what level of severity is warranted for the Veteran's peripheral neuropathy. Therefore, the examiner does not have to use the words, "mild," "moderate," "moderately severe," or "severe" for the Board to be able to rely on the examination, if there is sufficient objective medical findings in the report for the Board to rate the claim, which the Board has determined there is. As for the examiner's contention that the RO had requested the examiner to identify the severity of the condition and noted that any relevant tests that needed to be conducted were authorized, the Board finds that the examiner complied with the RO's request. The request specifically noted that with respect to the Veteran's increased rating claim for peripheral neuropathy of the bilateral lower extremities, the examiner should "evaluate for current severity and perform any additional exams deemed necessary." The examiner subsequently performed neurological testing and provided sufficient objective findings to rate the claim, but apparently determined that any further testing, such as EMG testing, was not warranted. There is no indication that the examiner did not comply with the RO's request. For these reasons, the Board finds that the VA examination in December 2009 is sufficient to rate the Veteran's disability, and that even though there are no EMG studies, the objective findings in the report are sufficient. Finally, the Board notes that even though, as the Veteran's representative points out, the Veteran has not had an EMG study since 2008, the objective findings in the 2009 report are sufficient to rate the claim, and no EMG testing is necessary. The fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). While the Veteran has continued to maintain that the evidence of record should warrant higher ratings for his peripheral neuropathy, he has never asserted that his disability has worsened since it was last evaluated in December 2009. Therefore, the Board determines that a new examination is not warranted in this case. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. Increased Rating The RO originally granted service connection for peripheral neuropathy of the bilateral lower extremities in a July 2008 rating decision, assigning 10 percent ratings. The Veteran filed his present increased rating claim in October 2009. He notified VA of additional VA treatment records dated from 2007 to 2009, which were constructively of record at the time of the July 2008 rating decision. However, none of the evidence within one year of the July 2008 rating decision establishes that entitlement to a rating higher than 10 percent for peripheral neuropathy of the bilateral lower extremities is warranted. Therefore, there was no new and material evidence under 38 C.F.R. § 3.156(b) submitted within one year of the July 2008 rating decision to keep that decision pending; and it became final. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran's peripheral neuropathy is rated under the provisions of 38 C.F.R. § 4.124a , Diagnostic Code 8520, for incomplete paralysis of the sciatic nerve. Under these guidelines, moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Incomplete paralysis of the sciatic nerve which is severe, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve, manifested by symptoms including the foot dangles and drops, no active movement of the muscles below the knee, flexion of the knee weakened or lost, is rated as 80 percent disabling. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree of impairment. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.124a . Also potentially applicable are the diagnostic codes for other tibial and femoral nerves that also address motion of the feet and leg below the knee. 38 C.F.R. § 124a. Diagnostic Codes 8521-26. These diagnostic codes provide for similar or less beneficial ratings for incomplete paralysis. As the relevant lay and medical evidence does not indicate loss of specific motor functions of the lower extremities, the Board concludes that Diagnostic Code 8520 is most applicable because it addresses loss of sensation, motor, and reflex functions and provides for ratings more favorable to the Veteran. Private treatment records reflect that in October 2008 the Veteran was found to have slightly decreased vibratory sense in his toes. In October 2009 he reported to his private physician that he was losing feeling in the bottom of his feet and experiencing minimal burning pain. The Veteran stated that it was not bad enough to warrant medication. In June 2009 at a VA appointment the Veteran complained of bilateral heel pain for several weeks. He noted he worked construction and was on his feet most of the day standing and walking on hard surfaces. On examination, he was found to have decreased sensation in his feet with monofilament. In March 2009 at a VA appointment he was found to have numbness in his toes. The Veteran underwent a VA examination in December 2009. He reported experiencing tingling of the skin and a burning sensation. He also reported a loss of sensation on the bottom of his feet and difficulty standing, particularly prolonged standing. He reported he experiences flare-ups with pain, weakness, and functional loss aggravated by sitting, walking, and standing on a daily basis. He was found to have no muscle wasting, muscle atrophy, lesion, or loss of fine motor control in either his right or left lower extremities. The sensory examination noted bilateral peripheral neuropathy of the lower extremities with decreased sensation to pinprick, position sense, vibratory sense, and two point discrimination. The examiner also noted the Veteran had difficulty with proprioception and ambulation and decreased sensation of the feet. The examiner noted the need for special shoes. In a November 2010 statement the Veteran asserted that he should be rated at 40 percent or higher for his peripheral neuropathy in each extremity. The evidence reflects that the Veteran's service connected peripheral neuropathy of the right and left lower extremities has caused disability comparable to no more than moderate incomplete paralysis of the sciatic nerve. The VA examination found the Veteran's disability is manifested by a burning sensation and sensory loss, but with no loss of muscle mass or function. As noted, where, as here, the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In this case, only sensory impairment was noted on the neurological examination. The Veteran's functional loss does not approximate moderately severe incomplete paralysis, even considering his assertions. The evidence as a whole, including the VA examination, the Veteran's VA treatment records, and the Veteran's statements, show that the disability is wholly sensory. Although there may be functional impairment as described by the Veteran at his VA examination, there is no actual incomplete paralysis of the nerve, only sensory loss approximating moderate incomplete paralysis. Accordingly, higher ratings are not warranted as the Veteran's symptoms, albeit painful, are wholly sensory. See 38 C.F.R. § 4.124a. The Board acknowledges the Veteran's complaints that his peripheral neuropathy is more severe than warranted for a 40 percent rating. However, there is no competent medical evidence or opinion to corroborate this contention. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). In this case, the Board finds that the Veteran's contention is not competent. While the Veteran is competent to state what symptoms he feels in his legs, a determination of the severity of a peripheral neuropathy disorder is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. As to the effective date for the assigned rating, the RO assigned an effective date of October 16, 2009, based on the date of the receipt of the Veteran's increased rating claim. He has continued to have similar complaints of burning and numbness in his lower extremities since that time. Therefore, it is reasonable to conclude that the peripheral neuropathy symptoms have not changed over the years since the date of the claim. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) also has not been raised by the record as part of the Veteran's claim a higher rating for his peripheral neuropathy of the lower extremities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The June 2009 VA treatment record mentioned that the Veteran worked in construction and had pain in his feet from walking and standing on hard surfaces; but there is no indication that his peripheral neuropathy of the lower extremities renders him unemployable. Overall, the preponderance of the evidence is against the Veteran's claim for increased ratings above 20 percent for peripheral neuropathy of each of the right and left lower extremities. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Extraschedular The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service connected peripheral neuropathy of the lower extremities that would render the schedular criteria inadequate. The Veteran's main complained of symptom of loss of sensation on the bottom of his feet is contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's peripheral neuropathy of the lower extremities. In addition, the Board finds the record does not reflect that the Veteran's peripheral neuropathy of the lower extremities markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). While the Veteran complained of pain in his feet on examination in June 2009 from walking and standing on his job in construction, he did not report that he had missed work or that his peripheral neuropathy of the lower extremities markedly interfered with his employment. The manifestations of the Veteran's disability are considered by the scheduler rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an increased evaluation for peripheral neuropathy of the left lower extremity is denied. Entitlement to an increased evaluation for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs