Citation Nr: 1312436 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-36 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an ulcer, to include as secondary to service-connected diabetes. 2. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus prior to May 10, 2012, and in excess of 40 percent thereafter. 3. Entitlement to an increased disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement to an increased disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from August 1966 to July 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The claims at issue were previously remanded by the Board in December 2012 for further procedural development of affording the Veteran an opportunity to present testimony before the Board during a videoconference hearing. This was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). However, because the Veteran withdrew the hearing request in March 2013, the Board hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2012); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). In a March 2013 written statement, submitted by the Veteran's representative, the Veteran withdrew his appeal for the issues of service connection for an ulcer, including as secondary to service-connected diabetes; and an increased rating (evaluation) in excess of 20 percent for diabetes prior to May 10, 2012, and in excess of 40 percent thereafter. The Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the Veteran has already been granted entitlement to TDIU. Accordingly, further consideration of a TDIU is not warranted. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. In a written statement received in March 2013, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the Substantive Appeal on the issues of service connection for an ulcer, including as secondary to service-connected diabetes; and an increased rating (evaluation) in excess of 20 percent for diabetes prior to May 10, 2012, and in excess of 40 percent thereafter. 2. For the entire period at issue in this appeal, left and right lower extremity peripheral neuropathies were manifested by no more than moderate incomplete paralysis of the affected nerves. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a Substantive Appeal have been met regarding the claims for service connection for an ulcer, including as secondary to service-connected diabetes; and an increased rating (evaluation) in excess of 20 percent for diabetes prior to May 10, 2012, and in excess of 40 percent thereafter. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for a rating of 20 percent for service-connected left lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8521 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for a rating of 20 percent for service-connected right lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Issues on Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege a 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. § 20.204. In a March 2013 written statement, submitted by the Veteran's representative prior to the promulgation of a decision in the appeal, the Veteran wrote that he wished to withdraw the issues of service connection for an ulcer, including as secondary to service-connected diabetes; and an increased rating (evaluation) in excess of 20 percent for diabetes prior to May 10, 2012, and in excess of 40 percent thereafter. As the Veteran has withdrawn his appeal regarding these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues of service connection for an ulcer, including as secondary to service-connected diabetes; and an increased rating (evaluation) in excess of 20 percent for diabetes prior to May 10, 2012, and in excess of 40 percent thereafter, and they are dismissed. Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating for Bilateral Lower Extremity Peripheral Neuropathy The Veteran contends that he has pain, muscle cramping, and lower extremity numbness and tingling due to his bilateral lower extremity peripheral neuropathy. After a review of all the evidence, both lay and medical, the Board finds that the evidence is at least in relative equipoise on the question of whether, for the entire increased rating period, the Veteran's symptoms more nearly approximated the criteria for a higher disability rating of 20 percent for right and left lower extremity peripheral neuropathies. Bilateral Lower Extremity Peripheral Neuropathy is not specifically listed in the rating schedule. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). Here, the most closely analogous diagnostic code is DC 8521. DC 8521 provides ratings for paralysis of the external popliteal nerve. DC 8521 provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. The rating schedule does not define the terms "mild," "moderate," "severe," or "marked," as used in this diagnostic code to describe the degree of deformity of the foot. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Board notes that 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. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. In a March 2008 private treatment record, the private examiner reported good dorsalis pedis pulse bilaterally and slight loss of sensation. The private examiner reported the Veteran was unable to detect a 10-gram monofilament testing on the plantar surface laterally at the metatarsal heads, but otherwise good sensation throughout the rest of the foot. In a September 2008 private treatment record, the private examiner reported numbness and tingling in the left anterior thigh. The private examiner also reported good sensation to 10 gram monofilament testing to the feet bilaterally, appropriate dorsalis pedis pulse bilaterally, and no pain with palpation of his calf. In a separate 2008 private treatment record, the private examiner reported extremities had trace edema, 1+ deep tension reflexes symmetric, and motor strength was 5+/5. In an October 2008 private treatment record, the private examiner reported 1+ edema to the lower extremities bilaterally and appropriate 2/4 dorsalis pedal pulse bilaterally. In an April 2009 private treatment record, the Veteran reported pain in both legs. The private examiner reported that the Veteran walked normally, straight leg raising was negative, cross leg raising was negative, reversed leg raising was negative, reflexes were 2+ and symmetric throughout, motor strength was grade 5/5 and symmetric throughout, reflexes were intact, and the knee exam was normal. In a separate April 2009 private treatment record, the Veteran reported pain and numbness in both legs. The private examiner reported no response from: right peroneal distal latency, right posterior tibial distal latency, right sural sensory distal latency, left peroneal motor distal latency, left posterior tibial motor distal latency, and left sural sensory nerve distal latency. The private examiner provided an assessment of sensory motor polyneuropathy. In the July 2009 VA diabetes medical examination, the Veteran reported tingling in his toes. The VA examiner reported all extremities had: full range of motion, good color, normal temperature, full and equal strength, pulses, and no pain, swelling, or ulcers. The VA examiner further reported deep tendon reflexes of 2+ bilateral for Patellar (L3-L4) and 2+ bilateral for Achilles (S1). The VA examiner reported negative (normal) Babinski sign and only slight loss of light touch to bilateral toes. The VA examiner diagnosed mild peripheral neuropathy. In an August 2009 VA treatment record, the VA examiner reported lower extremities without heat, redness, or tenderness. The VA examiner also reported dorsalis pedis and posterior tibial pulses were intact, motor and sensation were intact, and deep tendon reflexes were symmetric and physiologic. In a February 2010 VA treatment record, the VA examiner reported distal pulses were intact, no ulcers or cyanosis, and straight leg raises were negative bilaterally. The VA examiner also reported trouble feeling big toes with monofilament. The VA examiner diagnosed peripheral autonomic neuropathy. In a September 2010 VA treatment record, the VA examiner reported normal peripheral motor activity. In the May 2012 VA diabetes medical examination, the Veteran reported numbness and tingling in both lower extremities. The Veteran reported moderate intermittent pain in the lower extremities, moderate parathesias in the lower extremities, and moderate numbness in the lower extremities. On neurological examination, the VA examiner reported normal strength (5/5) in: knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion. The examiner reported normal (2+) deep tendon reflexes in the knee and decreased (1+) deep tension reflexes in the ankle. Light touch / monofilament testing was normal in the knee/thigh and ankle/lower leg, but was decreased in the foot/toes. The VA examiner also reported vibration sensation and cold sensation were decreased in the lower extremities, but there was no muscle atrophy or trophic changes in the lower extremities. In light of the Veteran's subjective complaints of constant pain and numbness and the objective evidence of diminished reflexes and decreased sensation, the Board finds that the evidence is in relative equipoise regarding whether the criteria for the 20 percent rating under DC 8521 are met for the entire increased rating period. In this respect, the evidence shows that the bilateral lower extremity peripheral neuropathy results in disability that is more than mild. Not only is there decreased sensation, but the disability is also shown to cause pain, decreased cold sensation, and numbing. Fortunately, there is no indication of any type of muscular atrophy, foot drop and loss of movement or impaired range of motion. In addition, even though sensation and reflexes were found to be diminished on examination, they still were present. 38 C.F.R. § 4.124a, DC 8521. In this case, the Board finds that the evidence reflects that the Veteran's peripheral neuropathy manifests in no worse than moderate incomplete paralysis in his lower extremities. Resolving all reasonable doubt in the Veterans favor, the Board finds that the Veteran's symptoms more nearly approximate the criteria for the 20 percent rating for bilateral peripheral neuropathy under DC 8521 for the entire increased rating period. 38 C.F.R. § 4.124a. The Board's grant of an increased 20 percent rating for left and right lower extremity neuropathies, while less than the schedular maximum rating, is a full grant of the benefits sought on appeal. In the March 2013 statement, the Veteran wrote that 20 percent ratings would fully satisfy his appeal of these rating issues. Nevertheless, even though the Veteran would be satisfied with a 20 percent evaluation, the weight of the evidence does not show severe incomplete paralysis or complete paralysis of the external popliteal nerve. As such, while a 20 percent rating is granted, the criteria for a higher 30 or 40 percent rating have not been met. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations also have been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for referral or assignment of an extra-schedular evaluation. Schafrath, 1 Vet. App. at 593. The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, 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, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the schedular rating criteria contemplate the symptoms and impairment of the Veteran's service-connected left and right lower extremity neuropathies. The service-connected bilateral lower extremity neuropathy rating criteria reasonably describe the Veteran's disability level and symptomatology. They account for his pain, numbness, and weakness. In addition, the criteria provide for higher ratings if certain symptoms are present. Here, those symptoms are not present. Because the schedular rating criteria is adequate to rate the Veteran's service-connected disabilities, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issue decided herein. The RO sent the Veteran a letter in June 2009 that informed him of the requirements needed to establish an increased evaluation for peripheral neuropathy of the right and left lower extremities. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran. The Veteran has been afforded adequate examinations on the issue of increased ratings for service-connected peripheral neuropathy of the right and left lower extremities. VA provided the Veteran with examinations in July 2009 and May 2012. Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted. Conclusions reached and diagnoses given were consistent with the examination report. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issue of increased rating for service-connected peripheral neuropathy of the right and left lower extremities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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 v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal for service connection for an ulcer, to include as secondary to service-connected diabetes, is dismissed. The appeal for an increased rating in excess of 20 percent for diabetes prior to May 10, 2012, and in excess of 40 percent thereafter, is dismissed. An increased disability rating for left lower extremity peripheral neuropathy of 20 percent is granted, subject to the laws and regulations governing the award of monetary benefits. An increased disability rating for right lower extremity peripheral neuropathy of 20 percent is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs