Citation Nr: 1313216 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 08-28 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to a disability rating higher than 20 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from April 1967 to April 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In that decision, the RO granted the Veteran increased ratings, to 20 percent, for his service-connected peripheral neuropathy of the right and left lower extremities. The Board denied the Veteran's claims for increase in a January 2011 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the parties filed a Joint Motion for Partial Remand to vacate the Board's decision, in pertinent part, insofar as it denied a disability rating higher than 20 percent for peripheral neuropathy of the right and left lower extremities. By an order dated in November 2011, the Court granted the Joint Motion, vacated the Board's January 2011 decision denying the Veteran's claims for increase, and remanded the case to the Board for further action. Pursuant to the Joint Motion, the Board remanded the Veteran's claims in May 2012 for further evidentiary development and adjudication. In the remand, the Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with a VA examination and then re-adjudicate the claims. The AOJ scheduled the Veteran for VA examination, which was completed in February 2013, and provided the Veteran with a supplemental statement of the case in February 2013, in which the AOJ again denied the Veteran's claims. Thus, there has been compliance with the Board's remand . See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in June 2010. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the right lower extremity has been manifested by moderate sensory symptoms such as numbness, tingling, and intermittent pain in the feet approximating no worse than moderate incomplete paralysis of the sciatic nerve. 2. The Veteran's peripheral neuropathy of the left lower extremity has been manifested by moderate sensory symptoms such as numbness, tingling, and intermittent pain in the feet approximating no worse than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for a disability rating higher than 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Board finds that all notification and development action needed to arrive at a decision on the claims on appeal has been accomplished. In this respect, through an October 2008 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claims. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice in the October 2008 letter concerning the assignment of rating criteria and effective dates. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claims, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the October 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned October 2008 notice letter. The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. Records of post-service treatment the Veteran has received from VA treatment providers has been associated with the claims file. In addition, the Veteran underwent VA examination in November 2008, August 2009, and February 2013; reports of those examinations are of record. In that connection, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and document that the examiners conducted examination of the Veteran and considered the relevant evidence. An explanation of the opinions offered by each examiner was provided. Accordingly, the Board finds that VA's duty to assist with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claim. The Veteran has also testified before the undersigned Veterans Law Judge at a hearing in June 2010. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claims that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, and VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, the Court of Appeals has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Evaluations for peripheral neuropathy are assigned based on whether the paralysis of a particular nerve is complete or incomplete. Here, the Veteran has been evaluated for peripheral neuropathy of the right and left lower extremities under Diagnostic Code 8520, governing paralysis of the sciatic nerve. 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3 (2012). Under Diagnostic Code 8520 for paralysis of the sciatic nerve, a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis. Complete paralysis consists of the foot dangling and dropping, with no active movement possible of the muscles below the knee and flexion of the knee weakened or lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Relevant medical evidence of record consists of VA medical examinations conducted in November 2008, August 2009, and February 2013. Report of the November 2008 examination reflects that the Veteran was noted to complain of a constant feeling of cold in his feet, as well as occasional severe pain and sensitivity in the toes. The examiner found normal muscle strength, tone, and reflexes in the lower extremities bilaterally, with decreased sensation in the lower extremities. Similarly, report of the August 2009 VA examination reflects that the Veteran complained of occasional numbness and burning in his toes, along with sensitivity to touch, that occurred approximately three times per week. Physical examination found some sensory loss, although the examination was otherwise normal in the lower extremities bilaterally. The examiner found the peripheral neuropathy not to affect the Veteran's activities of daily living or his ability to work, noting that he was disabled secondary to an unrelated back problem. The Veteran again underwent another VA examination in February 2013. Report of that examination reflects that the Veteran complained that his feet were often cold and sometimes numb and tingly. He stated that his feet would fall asleep with prolonged sitting. He denied experiencing constant pain but was found to have mild intermittent pain and paresthesias, as well as mild to moderate numbness in his lower extremities. Physical testing revealed normal muscle strength and deep tendon reflexes, with no muscle atrophy or abnormality of gait. The Veteran was found to have decreased sensory testing and a loss of hair on his lower extremities. The examiner diagnosed the Veteran with moderate incomplete paralysis of the sciatic nerve bilaterally that was aggravated due to his long history of smoking. The examiner found the Veteran to have mild symptoms of peripheral neuropathy that felt moderate or occasionally severe due to his smoking habit. The examiner also concluded that the Veteran's peripheral neuropathy did not affect his ability to work. Records of the Veteran's ongoing treatment with VA treatment providers reflects that he has sought treatment on multiple occasions for complaints of pain and numbness in his lower extremities. Electromyography study conducted in April 2008 reflected radiculopathy of the left lower extremity. He was similarly seen in June 2008 for complaints of pain in his left hip and leg, which was diagnosed as radiculopathy of the left peroneal nerve. He was seen in December 2008 for what was identified as intermittent symptoms of peripheral neuropathy. At October 2007 and March 2009 VA diabetes examinations, the Veteran complained of paresthesias, loss of sensation, and pain in his lower extremities bilaterally. Testing found normal muscle strength, temperature, color, and pulses in the lower extremities, with some loss of sensation noted. At a treatment visit in March 2011, the Veteran was specifically noted to experience mild diabetic peripheral neuropathy with decreased sensation. In addition, the Veteran has testified before a Decision Review Officer and the undersigned Veterans Law Judge at hearings at the RO. At those hearings, the Veteran testified that his feet were cold all the time and that he had the feeling of standing on rocks or sticks. In addition, the Veteran contended that he experienced numbness and tingling in his lower extremities bilaterally. Upon review of the evidence, the Board finds that the Veteran's service-connected peripheral neuropathy of the right and left lower extremities has resulted in disability approximating no worse than moderate incomplete paralysis of the sciatic nerve. Because the Veteran is already receiving a 20 percent rating for each lower extremity, which rating contemplates moderate impairment for the disability, higher ratings are not warranted. In that connection, the Board notes that there is no evidence that the Veteran experiences severe incomplete paralysis of the right or left lower extremity. At the Veteran's August 2009 VA examination, he reported only intermittent numbness and burning in the lower extremities. Similarly, at the February 2013 VA examination, the Veteran himself reported experiencing no more than moderate symptoms of numbness, paresthesias, and intermittent pain in his lower extremities. Severe symptoms were noted only intermittently. Importantly, the February 2013 VA examiner explicitly considered the Veteran's reported symptoms of pain, numbness, tingling, and cold in his lower extremities in concluding that the symptoms are no more than moderate in severity. Because the Veteran was found to experience only moderate disability in the lower extremities at his February 2013 VA examination, the Board concludes that this disability is tantamount to moderate incomplete paralysis of the sciatic nerve, warranting no more than the 20 percent ratings currently assigned for each extremity under Diagnostic Code 8520. In so finding, the Board acknowledges that the VA examiner noted at the February 2013 examination that the Veteran's symptoms of peripheral neuropathy occasionally appeared severe due to his smoking. However, the Board finds that the preponderance of the evidence supports a finding that the Veteran's peripheral neuropathy of the right and left lower extremities is consistently no more than moderate in nature, given that the Veteran himself stated at the February 2013 VA examination that the symptoms of pain, paresthesia, and numbness in the extremities were no than moderate in severity. The Board has considered the Veteran's and his representative's contentions with regard to his claims for higher ratings for his service-connected peripheral neuropathy of the lower extremities. Although the Board does not doubt the sincerity of the Veteran's belief that his disabilities are more severely disabling than reflected in the current ratings, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). In addition, the Board notes, as pointed out above, that the February 2013 VA examiner explicitly considered the Veteran's stated symptoms of pain, numbness, and burning in his lower extremities and nevertheless found those symptoms to be no more than moderate in nature. In addition, the Board finds compelling that the Veteran himself identified these symptoms as no worse than moderate at the February 2013 VA examination. The Board finds the Veteran's statements in the context of the VA examination, as well as the expert findings of the VA examiner, to be most probative in determining the current severity of the Veteran's symptomatology. The above determination is based on consideration of the applicable provisions of VA' s rating schedule. The Board finds that at no time have the disabilities under consideration been shown to be so exceptional or unusual as to warrant the referral for consideration of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected peripheral neuropathy of the right and left lower extremities-without consideration of other disabilities-has rendered impractical the application of the regular schedular standards. In that connection, multiple VA examiners have noted that the Veteran is unable to work secondary not to his peripheral neuropathy but to an unrelated back disorder. In addition, the Veteran has been awarded a total disability rating based on unemployability due to service-connected disability (TDIU). Furthermore, his symptoms are all contemplated by the criteria as discussed above. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. 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. 38 C.F.R. § 4.1 (2012). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claims that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are all addressed by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). As a result, the Board concludes that a remand for referral of the rating issue to the VA Central Office for consideration of extra-schedular evaluation is not warranted. For all the foregoing reasons, the Board finds that disability ratings higher than 20 percent for peripheral neuropathy of the right and left lower extremities are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). This is so for the entirety of the claim period. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claims for higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating higher than 20 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to a disability rating higher than 20 percent for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs