Citation Nr: 1312216 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 07-29 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a higher initial disability rating than 10 percent for peripheral neuropathy of the left lower extremity prior to June 21, 2012. 2. Entitlement to a higher initial disability rating than 20 percent for peripheral neuropathy of the left lower extremity since June 21, 2012. 3. Entitlement to a higher initial disability rating than 10 percent for peripheral neuropathy of the right lower extremity prior to June 21, 2012. 4. Entitlement to a higher initial disability rating than 20 percent for peripheral neuropathy of the right lower extremity since June 21, 2012. 5. Entitlement to a higher initial disability rating than 10 percent for peripheral neuropathy of the left upper extremity. 6. Entitlement to a higher initial disability rating than 10 percent for peripheral neuropathy of the right upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active duty service from September 1963 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran's appeal was remanded by the Board in March 2012 so that the RO could attempt to obtain and associate with the claims file any VA treatment records dated from February 2011 forward from the Loma Linda VA Medical Center, and then schedule the Veteran for a VA neurological examination to ascertain and evaluate the current level of severity of his peripheral neuropathy. The relevant VA records have been obtained, and the Veteran was afforded a VA examination in June 2012. Accordingly, the Board finds that there has been substantial compliance with the directives of the March 2012 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). In Rice v. Shinseki, 22 Vet. App. 447, 451 (2009), the Court of Appeals for Veterans Claims (Court) held that once a Veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the claimant is entitled to a total disability rating for compensation on the basis of individual unemployability (TDIU) rating. However, in this case the Veteran has already been awarded a grant of TDIU effective from December 11, 1998. As such, further consideration of entitlement to a TDIU is not required. FINDINGS OF FACT 1. Prior to June 21, 2012, the Veteran's peripheral neuropathy of the left lower extremity was manifested by moderate, incomplete paralysis of the sciatic nerve, indicated by numbness, tingling, decreased sensation, and decreased mobility. 2. Since June 21, 2012, the Veteran's peripheral neuropathy of the left lower extremity was manifested by moderate, incomplete paralysis of the sciatic nerve, indicated by numbness, tingling, decreased sensation, and decreased mobility. 3. Prior to June 21, 2012, the Veteran's peripheral neuropathy of the right lower extremity was manifested by moderate, incomplete paralysis of the sciatic nerve, indicated by numbness, tingling, decreased sensation, and decreased mobility. 4. Since June 21, 2012, the Veteran's peripheral neuropathy of the right lower extremity was manifested by moderate, incomplete paralysis of the sciatic nerve, indicated by numbness, tingling, decreased sensation, and decreased mobility. 5. The Veteran's peripheral neuropathy of the left upper extremity is manifested by mild incomplete paralysis of the median nerve, indicated by decreased sensation. 6. The Veteran's peripheral neuropathy of the right upper extremity is manifested by mild incomplete paralysis of the median nerve, indicated by decreased sensation. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent for peripheral neuropathy of the left lower extremity prior to June 21, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.124a, Diagnostic Code 8521 (2012). 2. The criteria for an initial disability rating greater than 20 percent for peripheral neuropathy of the left lower extremity have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.124a, Diagnostic Code 8521 (2012). 3. The criteria for an initial disability rating of 20 percent for peripheral neuropathy of the right lower extremity prior to June 21, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.124a, Diagnostic Code 8521 (2012). 4. The criteria for an initial disability rating greater than 20 percent for peripheral neuropathy of the right lower extremity have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.124a, Diagnostic Code 8521 (2012). 5. The criteria for an initial disability rating greater than 10 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.124a, Diagnostic Code 8515 (2012). 6. The criteria for an initial disability rating greater than 10 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a May 2006 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the May 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and indicated private treatment records have been obtained. Also, the Veteran was provided with VA examinations, most recently in June 2012. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). The June 2012 VA examination was adequate because it provided sufficient information to decide the appeal by an examiner with appropriate expertise, and because it addressed the current severity of the Veteran's peripheral neuropathy in conjunction with the applicable VA rating criteria. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Lower Extremities The Veteran seeks increased initial ratings for his peripheral neuropathy of the left upper extremity and right upper extremity. By way of history, he originally filed a claim for entitlement to service connection for peripheral neuropathy in October 2005. In an August 2006 rating decision, the RO granted entitlement to service connection for peripheral neuropathy of the left and right extremities and assigned a 10 percent evaluation effective October 25, 2005. Subsequently, in an October 2012 rating decision, the RO increased these evaluations to 20 percent each effective June 21, 2012, the date of a VA examination conducted on that date which showed evidence of moderate, incomplete paralysis. As such, the Board will first assess the propriety of the 10 percent ratings assigned prior to June 21, 2012, and then assess the propriety of the 20 percent ratings assigned since June 21, 2012. Throughout the period on appeal, the Veteran's peripheral neuropathy of the left and right lower extremities has been rated under Diagnostic Code 8521. Under DC 8521, complete paralysis of the nerve with foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, extension of proximal phalanges of toes lost, abduction of foot lost, adduction weakened, and anesthesia covering the entire dorsum of foot and toes warrants a 40 percent disability rating. Severe incomplete paralysis of the nerve warrants a 30 percent disability rating. Moderate incomplete paralysis of the nerve warrants a 20 percent disability rating. Mild incomplete paralysis of the nerve warrants a 10 percent disability rating. 38 C.F.R. § 4.124a. 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating 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. With respect to the period prior to June 21, 2012, VA treatment records list diabetic neuropathies among the Veteran's active problems. In a May 2005 treatment note, an examination of the Veteran's extremities revealed no edema, cyanosis, or ulcerations. Distal pulses were equal, bilaterally. Although there was a decrease in sensation to light touch, his sensation was intact to pinprick and vibration. The VA staff physician noted that the Veteran's diabetic neuropathies were stable, although a diabetic foot examination including inspection, pulses, and sensory examination using a monofilament were abnormal, as described above. The Veteran was provided a VA peripheral nerves examination in May 2006, at which time he was diagnosed as having peripheral neuropathy of his bilateral lower extremities which was related to his service-connected diabetes mellitus. Subjectively, the Veteran reported a history of gradual increasing numbness and tingling in the distal part of his bilateral lower extremities soon after his diabetes was diagnosed in 1994. The Veteran indicated that he was aware of diabetic foot care and did not report any ulcerations of the feet. The Veteran additionally reported having difficulty walking and occasional falls. Upon objective examination of the lower extremities, there was no evidence of a sensory or motor deficit, demarcated by dermatomes. However, the Veteran did exhibit decreased proprioceptive sensations and light touch on his bilateral forefeet and all his toes. As discussed above, in an October 2012 rating decision, the RO increased the Veteran's evaluations for the bilateral lower extremities to 20 percent each effective June 21, 2012, the date of a VA examination conducted on that date. The June 2012 examination report diagnosed the Veteran as having diabetic peripheral neuropathy, and the Veteran subjectively described numbness and tingling in his bilateral ankles and feet. The Veteran additionally denied any constant or intermittent pain, but endorsed a history of numbness and paresthesias and/or dysesthesias in his bilateral lower extremities. Neurological testing revealed normal strength of knee flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion. However, deep tendon reflexes were decreased in his bilateral knees and ankles. Light touch testing results using a monofilament revealed normal sensation in his knees, thighs, ankles, and lower legs, but decreased sensation in his feet and toes. In addition, position sense and vibration sensation in his bilateral lower extremities was decreased. However, cold sensation was normal, and there was no evidence of muscle atrophy or trophic changes. The examiner opined that the Veteran had diabetic peripheral neuropathy of the lower extremities manifested by incomplete paralysis of the sciatic nerve. Significantly, the examiner indicated that this incomplete paralysis was merely moderate, as opposed to severe or moderately severe, in nature. Furthermore, the examiner found that the Veteran's femoral nerve was normal. The examiner additionally noted that the Veteran's diabetic neuropathy impacted his ability to work in that he suffered from decreased mobility due to his neuropathy of the lower extremities and was at increased risk of injury due to his lack of feeling. The Board finds the 20 percent disability rating for moderate, incomplete paralysis of each lower extremity to be warranted for the entire initial disability rating period on appeal; therefore, the appeal for a higher initial disability rating of 20 percent for peripheral neuropathy of the left lower extremity and right lower extremity prior to June 21, 2012, is granted. Although the examiners and physicians did not specifically use the word "moderate" to describe the Veteran's signs and symptoms of the lower extremities prior to June 12, 2012, the severity of his symptoms during this period was extremely similar to the severity documented on the June 12, 2012, examination report, when the word "moderate" was first used. For instance, the June 2012 examiner indicated that the Veteran had experienced decreased mobility and a slow, deliberate gate, while the May 2006 examination report indicated that the Veteran experienced difficulty walking and occasional falls. Furthermore, the Veteran exhibited decreased sensation to light touch in the lower extremities at both examinations. However, there is insufficient evidence of severe, incomplete paralysis of the lower extremities at any time during the appeal period. The June 2012 examiner specifically described moderate, incomplete paralysis, and explicitly declined to characterize the severity as severe or even as moderately severe. The Veteran denied pain, but described only numbness and tingling in the bilateral lower extremities. Deep tendon reflexes were also decreased. The current evaluation of 20 percent for moderate, incomplete paralysis of each lower extremity sufficiently encompasses those symptoms. For these reasons, the Board finds that the criteria for the assignment of an initial schedular evaluation of 20 percent, but no higher, for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy have been met for the entire period on appeal. To that extent, the appeal is granted. However, as a preponderance of the evidence is against the Veteran's claim for an initial evaluation greater than 20 percent, the appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Upper Extremities The Veteran's peripheral neuropathy of the left upper extremity is rated as 10 percent disabling under Diagnostic Code 8515 and the Veteran's peripheral neuropathy of the right upper extremity is rated as 10 percent disabling under Diagnostic Code 8515. Under that regulation, complete paralysis, manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm, flexion of the wrist weakened, or pain with trophic disturbances warrants a 70 percent disability rating for the major extremity and a 60 percent disability rating for the minor extremity. Incomplete paralysis with respect to the major extremity warrants a 50 percent disability rating if severe, a 30 percent disability rating if moderate, and a 10 percent disability rating if mild. 38 C.F.R. § 4.124a. Incomplete paralysis with respect to the minor extremity warrants a 50 percent disability rating if severe, a 30 percent disability rating if moderate, and a 10 percent disability rating if mild. 38 C.F.R. § 4.124a. VA treatment records list diabetic neuropathies among the Veteran's active problems. In a May 2005 treatment note, an examination of the Veteran's extremities revealed no edema, cyanosis, or ulcerations. Distal pulses were equal, bilaterally. Although there was a decrease in sensation to light touch, his sensation was intact to pinprick and vibration. The VA staff physician noted that the Veteran's diabetic neuropathies were stable. The Veteran was provided a VA peripheral nerves examination in May 2006, at which time he was diagnosed as having peripheral neuropathy of his bilateral upper extremities which was related to his service-connected diabetes mellitus. Subjectively, the Veteran reported a history of gradual increasing numbness and tingling in the distal part of his bilateral upper extremities soon after is diabetes was diagnosed in 1994. Upon objective examination of the upper extremities, there was decreased proprioceptive sensations and light touch sensation on the tips of his fingers. Although his left grip muscle strength was noted to be slightly decreased, the examiner added that the Veteran had a previous injury involving the left upper extremity. The June 2012 examination report diagnosed the Veteran as having diabetic peripheral neuropathy, although the Veteran subjectively denied symptomatology of his bilateral hands. The Veteran additionally denied any constant or intermittent pain as well as any numbness and paresthesias and/or dysesthesias in his bilateral upper extremities. Neurological testing revealed normal strength of elbow flexion, elbow extension, wrist flexion, wrist extension, gripping, and pinching. Deep tendon reflexes were normal in his bilateral biceps, triceps, and brachioradialis. Light touch testing results using a monofilament revealed normal sensation in his shoulders and forearms, but decreased sensation in his hand and fingers. In addition, position sense, vibration sensation, and cold sensation were normal, and there was no evidence of muscle atrophy or trophic changes. The examiner opined that the Veteran had diabetic peripheral neuropathy of the upper extremities manifested by incomplete paralysis of the median nerve. Significantly, the examiner indicated that this incomplete paralysis was merely mild, as opposed to severe, moderately severe, or moderate. Furthermore, the examiner found that the Veteran's ulnar nerve was normal. The Board finds the currently-assigned 10 percent disability rating for mild incomplete paralysis of the left lower extremity and right lower extremity to be warranted for the entire initial disability rating period on appeal; therefore the appeal for a higher initial disability rating is denied. There is insufficient evidence of moderate, incomplete paralysis of either upper extremity. Although there is objective evidence of decreased sensation in the Veteran's fingers, as recently as June 2012 the Veteran himself has denied any symptomatology related to his bilateral upper extremities. As such, the current evaluation of 10 percent for mild, incomplete paralysis sufficiently encompasses those symptoms. For these reasons, the Board finds that the criteria for the assignment of an initial schedular evaluation greater than 10 percent for peripheral neuropathy of the left and right upper extremities have not been met for any period. As a preponderance of the evidence is against the Veteran's claim for initial evaluations greater than 10 percent, the appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Consideration has also been given regarding whether any of the assigned schedular evaluations are inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular evaluations in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorders, but the medical evidence reflects that those symptoms are not present in this case. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disabilities. He has not required hospitalization for any of the disabilities. Marked interference of employment due to peripheral neuropathy alone has also not been shown. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule and no extraschedular referral is required. ORDER Entitlement to an initial disability rating of 20 percent for peripheral neuropathy of the left lower extremity prior to June 21, 2012, is granted, subject to the statutes and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating greater than 20 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial disability rating of 20 percent for peripheral neuropathy of the right lower extremity prior to June 21, 2012, is granted, subject to the statutes and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating greater than 20 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to an initial disability rating greater than 10 percent for peripheral neuropathy of the left upper extremity, is denied. Entitlement to an initial disability rating greater than 10 percent for peripheral neuropathy of the right upper extremity, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs