Citation Nr: 1313865 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 05-36 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for diabetic polyneuropathy of the left lower extremity prior to October 20, 2008. 2. Entitlement to an evaluation in excess of 20 percent for diabetic polyneuropathy of the left lower extremity from October 20, 2008. 3. Entitlement to an evaluation in excess of 10 percent for diabetic polyneuropathy of the right lower extremity prior to October 20, 2008 4. Entitlement to an evaluation in excess of 20 percent for diabetic polyneuropathy of the right lower extremity from October 20, 2008. 5. Entitlement to total disability based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1968 to April 1971 and from March 1974 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge in September 2009. A transcript of that proceeding has been associated with the claims file. In January 2011, the Board denied the Veteran's claims for increased evaluations as set forth on the cover page of this decision, to include consideration of whether referral for extraschedular evaluation was warranted. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) In a July 2011 Joint Motion for Partial Remand (joint motion), the parties moved to "partially" vacate the Board decision. Specifically, the joint motion moved to vacate only that portion of the Board decision that denied referral for extraschedular consideration and have that portion remanded to the Board. Pursuant to the joint motion, the Court, in a July 2011 Order, vacated "that part" of the Board's decision that denied entitlement to evaluations in excess of 10 percent for diabetic polyneuropathy of each lower extremity prior to October 20, 2008, and in excess of 20 percent since then. No specific mention was made of the issue of extraschedular consideration. Thus, although the joint motion requested only a partial vacate, and appeared to limit the issue the parties were asking be vacated to extraschedular consideration, it appears that the July 2011 Order vacated the entirety of the Board decision with respect to the increased evaluation claims, albeit for action "consistent with the terms of the joint motion." Thus, the Board concludes that the entirety of the January 2011 Board decision has been vacated. This case was most recently before the Board in September 2012, where the Board remanded the Veteran's claims in order to provide the Veteran with an updated VA examination. In a prior October 2010 remand, the Board directed the RO to consider extraschedular ratings in the first instance. The RO indicated that referral of the Veteran's claims on an extra-schedular basis was unnecessary in a July 2012 supplemental statement of the case. The Veteran was provided an additional VA examination in October 2012. The Board finds that its remand instructions have been substantially complied with, and the appeals are addressed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when 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 issue of entitlement to a rating in excess of 20 percent for diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to October 20, 2008, diabetic polyneuropathy of the left lower extremity was manifested by a disability that more closely approximated no more than moderate incomplete paralysis. 2. Resolving reasonable doubt in the Veteran's favor, from October 20, 2008, diabetic polyneuropathy of the left lower extremity has been manifested by a disability that more closely approximates no more than moderately severe incomplete paralysis. 3. Prior to October 20, 2008, diabetic polyneuropathy of the right lower extremity was manifested by a disability that more closely approximated no more than moderate incomplete paralysis. 4. Resolving reasonable doubt in the Veteran's favor, from October 20, 2008, diabetic polyneuropathy of the right lower extremity has been manifested by a disability that more closely approximates no more than moderately severe incomplete paralysis CONCLUSIONS OF LAW 1. Prior to October 20, 2008, the criteria for an evaluation of 20 percent, and no higher, for diabetic polyneuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.20, 4.124a, Diagnostic Code 8599-8520, 8521, 8526 (2012). 2. From October 20, 2008, the criteria for an evaluation of 40 percent, and no higher, for diabetic polyneuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.20, 4.124a, Diagnostic Code 8599-8520, 8521, 8526. 3. Prior to October 20, 2008, the criteria for an evaluation of 20 percent, and no higher, for diabetic polyneuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.20, 4.124a, Diagnostic Code 8599-8520, 8521, 8526. 4. From October 20, 2008, the criteria for an evaluation of 40 percent, and no higher, for diabetic polyneuropathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.20, 4.124a, Diagnostic Code 8599-8520, 8521, 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in December 2004. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless as notice in this regard was provided in a March 2007 letter and the claims were readjudicated in a subsequent supplemental statements of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of his disabilities, and afforded him the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file or are available in Virtual VA; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held 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). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the increased rating matters addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. In closing, the Board notes that in its October 2011 remand it directed the AOJ to consider referral for an extraschedular evaluation. The RO indicated that referral of the Veteran's claims on an extra-schedular basis was unnecessary in a July 2012 supplemental statement of the case. As will be discussed in greater detail below, the Board agrees with such determination, and finds that referral of this case for extraschedular consideration in the first instance is not warranted. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 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). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has evaluated the appellant's diabetic polyneuropathy of the left and right lower extremities under Diagnostic Code 8599-8521. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 8599 is used to evaluate unlisted diseases of the peripheral nerves that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 8521 pertains to paralysis of the external popliteal nerve. 38 C.F.R. § 4.241a. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Complete paralysis of the external popliteal nerve is manifested by the following symptoms, and is rated at the maximum, 40 percent level: 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. Incomplete paralysis is broken up into the three levels of mild, moderate, and severe. 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. 38 C.F.R. § 4.124a 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. 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. Id. The rating schedule does not define the terms "mild," "moderate," or "severe" as used in this diagnostic code. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6 . In the October 2012 VA examination, the examiner noted that the Veteran's peripheral neuropathy affected his sciatic and femoral (anterior crural) nerves. Diagnostic Code 8520 addresses the sciatic nerve, and provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is applied to complete paralysis of the sciatic nerve: foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. See 38 C.F.R. § 4.241(a), Diagnostic Code 8520. Diagnostic Code 8526 addresses the femoral (anterior crural) nerves, and provides a 10 percent rating for mild incomplete paralysis. A 20 percent rating is provided for moderate incomplete paralysis, and a 30 percent rating is provided for severe incomplete paralysis. A 40 percent rating is provided for complete paralysis of the femoral nerve: paralysis of the quadriceps extensor muscles. See 38 C.F.R. § 4.241(a), Diagnostic Code 8526. The Board will consider all potentially applicable Diagnostic Codes, in order to afford the Veteran the greatest opportunity for an increased rating. The Board finds, however, that separate ratings under these codes are not permissible as that would violate the rule against pyramiding by compensating the Veteran more than once for the impairment present in his lower extremities. 38 C.F.R. § 4.14 (2012). Factual Background VA treatment records reveal that the Veteran was assessed with probable peripheral neuropathy in January 2004. In March 2004, he complained of pain in his feet for the past year. His symptoms during rest were of pain and swelling of his feet, and his symptoms when walking or standing were pain, swelling, and stiffness of his feet. He reported losing work due to his feet two to three times a week. He additionally described onychomycosis of his toenails that caused him to miss work two to three times a week. The evaluation separately described peripheral neuropathy of his feet and toes, with symptoms of numbness, tingling and pain. He reported some difficulty walking "at times." He reported flare-ups five or six times a day, lasting "a short while." During flare-ups, "he has no change and still has difficulty walking." "Functional impairments results in swelling of the feet and difficulty walking an working. He estimates losing work two to three times a week for this condition." On physical examination, his feet did not show obvious painful motion, edema, disturbed circulation, weakness, atrophy or tenderness. He did not exhibit obvious limitation of function for standing or walking. He was using orthopedic inserts in his shoes, but reported they did not relieve his symptoms. Neurological testing of the lower extremities revealed normal motor function, with slightly reduced sensation on both forefeet. His muscle stretch reflexes were zero at both knees and 1+ at both ankles. He was assessed with diabetic polyneuropathy of the feet. A July 2004 VA treatment record documents a complaint of pain referred to the left foot over the past 2 months. The Veteran described the pain as sharp and associated with some numbness referred to the external aspect of the foot. He also reported moderate pain in his calves with walking moderate distances. The physician indicated that the Veteran's pedal pulses were not palpable, but were found on Doppler, and noted testing was needed to rule out peripheral neuropathy versus peripheral vascular disease. In August 2004, he was assessed with foot pain secondary to peripheral neuropathy, as arterial Dopplers were unremarkable. Shortly after the Veteran filed his claim in November 2004, he was provided a VA (QTC) examination in January 2005. At this time, the Veteran reported a history of neuropathy that affected the toes, feet, ankles and lower legs with tingling, numbness, constant pain, weakness and pain from the toes to the calves that flared up "almost constantly." He had no current treatment, but was limited in walking and standing and lost work 6 to 8 times per week due to the condition. Examination of the lower extremities showed that they had normal motor and sensory function with 1+ muscle stretch reflexes at the knees and ankles. The examiner assessed diabetic polyneuropathy of both lower extremities associated with diabetes mellitus type II. In an April 2005 letter, the Veteran related that the real crux of the matter was that he had tremendous pain and swelling in his feet and legs. He referenced, and enclosed an article indicating that neuropathy also involved swelling and pain. He also expressed his beliefs that his VA examination was not thorough enough. A September 2006 VA treatment note documented a complaint of pain in the feet, with the left greater than the right. The Veteran described painful toes and soles of his feet, with some associated numbness, worsened by prolonged walking. The Veteran also reported having noticed swelling in his feet. On physical examination his extremities were without edema. "Diabetic neuropathy, inter alia," was assessed at this time. In November 2006 the Veteran was once again provided a VA examination; the examiner did not have access to the claims file, but had access to the Veteran's VA treatment records. At this time, the Veteran denied any limitations, although he did note that he was having enough trouble with his feet that he was going to have difficulty with an insurance examination related to his employment. The Veteran's chief complaint at this time pertained to his feet. He reported swelling and sharp pain, described as stabbing pains in the feet with some numbness of the toes aggravated by edema in the feet. He denied any weakness in the lower extremities or feet. His walking and standing were limited to one-half mile and 30 minutes, respectively. He reported that his medications provided "some decrease" in his symptoms, but he continued to have swelling. He reported that while working as a wrecker his feet would swell and become painful. On physical evaluation, the Veteran had a normal gait and posture with normal weight-bearing. Motor functions were normal throughout the lower extremities, with no muscle mass changes. Knee jerks were 1+ bilaterally and ankle jerks were absent bilaterally. Babinski and Hoffman signs were negative. Position-sense soft touch was intact bilaterally, but the Veteran had decreased pinprick sensation in a low stocking distribution bilaterally and had decreased vibratory sensation below the knee bilaterally. Peripheral neuropathy of the lower extremities (sensory) was assessed. In March 2007, the Veteran's pedal pulses were noted to be weak on evaluation. He had decreased sensation of his feet per monofilament testing; however, his feet appeared normal and were without ulcers or other signs. In September 2007, he noted that his foot pain had increased, and he suffered from shooting pain. The pain was not related to activity. Physical evaluation did not reveal edema, deformity, ulcers or skin lesions. His pedal pulses were decreased. The VA physician increased the Veteran's Gabapentin to 600 mg. In an April 2008 letter, the Veteran's employer related that the Veteran could not perform his duties as a wrecker because he could not be insured. The employer noted that the Veteran could no longer operate a truck safely and described that the Veteran became dizzy and lightheaded after bending over and could no longer handle heavy lifting and tugging chains due to a shoulder problem. He also noted that the Veteran could not be on his feet because his feet and legs would swell and that the Veteran had missed a lot of work because his medication made him so sick that he could not function. This letter indicated that the Veteran was still employed by this company, but worked in a different capacity. On October 20, 2008, the Veteran reported he continued to have numbness and pain in his feet, and that Gabapentin had "not helped a lot;" but that he otherwise "felt good." The VA physician indicated his medications for peripheral neuropathy would be changed. He did not have edema on examination. Neuropathy of the feet was assessed. A February 2009 VAMC note documents that the new prescription medication Pregabalin helped decrease the Veteran's pain in his legs. In September 2009, the Veteran offered testimony before the Board. At the hearing, the Veteran reported having had ongoing treatment for polyneuropathy of the lower extremities. He related that the condition had worsened and affected his ability to walk long distances and operate motor vehicles. He testified that he had to stop 4 times on the way to the hearing to raise his feet to alleviate swelling. He reported that the numbness in his feet caused him difficulties in driving, particularly in that he had to pay close attention to whether his foot was on the accelerator or the brake. He expressed dissatisfaction with his last VA examination and related that he was no longer working for the employer that authored the April 2008 letter. After he could no longer work as a wrecker, he was employed with the same company as a dispatcher; however, he reported that his feet would swell with sitting for any period of time resulting in him having to take frequent breaks. In March 2010 the Veteran was afforded a VA examination; and complained of progressively worsening symptoms of neuropathy over the past 5 to 6 years. He reported constant numbness in the feet, as well as sharp pain at a level of 5/10 therein. He reported flare-ups of this pain 5 to 6 times per day, with associated pain at a level of 8/10, lasting 1 to 4 minutes, which severely limited his activities. He also described intermittent tingling and a "pins and needles" sensation in his feet. He was able to walk 1/4 mile and stand 10 to 15 minutes before the pain became severe. He had trouble running, particularly any longer than 10 minutes. He reported he retired 3 years prior. He did not use a cane, crutches or walker to aid in ambulation. Physical examination showed a slow gait. Neurological examination revealed that his feet had decreased sharp, dull, vibration and temperature sensation. Sensation was more decreased on the dorsal aspect of the feet. There was mild redness and edema noted on the feet. Patellar reflexes were 1+ bilaterally and the examiner was unable to elicit Achilles reflex bilaterally. With respect to motor strength, there was no evidence of muscle atrophy and the lower extremities were normal in tone and strength. The examiner assessed polyneuropathy of the right and left lower extremities. In an April 2010 addendum, the examiner noted that they had reviewed the claims file and there were no changes to the examination report. In May 2012, the Veteran's left toe began to swell and became discolored following an ingrown toenail. His toe had exfoliation due to ulceration and necrosis. On neurological evaluation of his left extremity, he was insensate in a socks distribution to below the knees. He was hospitalized, and reported the return of "some" sensation to his left leg. Vascular studies indicated appropriate arterial flow. X-rays showed swelling of his left toe, but "no additional soft tissue swelling is appreciated." Significant vascular calcification was noted. His left toe was amputated. In June 2012, he was noted to have minimal swelling of the left foot/toe. In October 2012, the Veteran was again afforded a VA peripheral neuropathy evaluation. He was diagnosed with diabetic neuropathy, diabetic foot ulcer, and toe amputation. The Veteran reported he "drove a tow truck for a living" but was forced to stop in 2005 due to an inability to operate the pedals. He developed ulceritis of the left toe, and underwent amputation in May 2012. He reported constant mild pain of his lower extremities. He also reported moderate numbness and paresthesias of this lower extremities. Neurological examination revealed normal strength of the knees and ankles. He had absent deep tendon reflexes of the knees and ankles. He had normal light touch/monofilament testing at the knees and thighs, with decreased sensation at the ankle and lower leg, and no sensation at the feet and toes. His position sense of the bilateral lower extremities was absent upon testing. He had decreased vibratory and cold sensation of the lower extremities. He did not have muscle atrophy or trophic changes. The examiner found that the Veteran had sciatic nerve and femoral nerve mild incomplete paralysis due to peripheral neuropathy. The examiner also found that the Veteran's peripheral neuropathy impacted his ability to work by preventing him from performing jobs which require prolonged walking, standing, or heavy lifting and carrying. He is unable to operate heavy machinery when fine sensory input from the feet is required. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board notes that the Veteran is competent to provide statements regarding his symptoms of pain, tingling, numbness, and swelling, and the Board finds him credible in his complaints. Additionally, his complaints are noted to treatment care providers as well as to the VA in conjunction with his appeal. While he consistently complained of swelling, he was noted to not have edema or swelling during all treatment he was provided until the March 2010 VA examination. In order to establish a higher evaluation, prior to October 10, 2008, the evidence must demonstrate at least moderate incomplete paralysis. In this regard the Veteran's treatment records and VA examinations throughout this period document subjective complaints of numbness and pain, but the majority of examinations consistently showed normal motor function in the lower extremities. However, the 2006 VA examiner diagnosed "peripheral neuropathy of the lower extremities (sensory)," the physical findings also showed decreased knee jerks and absent ankle jerks. Also, as noted, he consistently complained of swelling, although swelling was not noted on physical evaluation during this period on appeal. At no time prior to October 2008 date did the Veteran require the use of an assistive device, such as a cane, to assist in ambulation. Given the Veteran's complaints of swelling, and the presence of at least some objective evidence indicating decreased knee jerks and absent reflexes as well as diminished sensation, the Board finds that a 20 percent rating is warranted for these moderate symptoms. However, as the Veteran maintained motor function and strength of his lower extremities, and as his sensation was diminished but intact, the Board does not find that his symptoms met the next higher level of moderately severe (Diagnostic Code 8520) or severe (Diagnostic Codes 8521 and 8526). For the period beginning October 20, 2008, in order to establish an evaluation in excess of 20 percent there must be moderately severe or severe incomplete paralysis or complete paralysis. In this regard, the Board notes the Veteran's complaints regarding swelling and difficulty with walking and running. Beginning October 20, 2008, the Veteran began to complain to treatment care providers of increased symptoms. His pain and a "stabbing" feeling in his feet increased in severity. VA physicians attempted to control his symptoms by changing his medications, but these changes appeared to only decrease symptoms for a short period of time. By his 2010 VA examination, the Veteran's peripheral neuropathy symptoms included decreased sensation to all tests (sharp, dull, vibration and temperature). Additionally, mild redness and edema were first noted by a medical professional. His reflexes remained decreased and absent, and his motor strength was normal. During his 2012 examination his motor strength remained normal. But his reflexes were absent to both his knees and his ankles. His sensation remained decreased to his knees, but was absent to his feet. His positional sense was absent for his lower extremities and he had decreased vibration and cold sensation. The VA examination results affirm the Veteran's complaints of increased symptoms beginning on October 20, 2008. The Board finds that his lower extremities exhibit moderately severe incomplete paralysis of the sciatic nerve, and warrant a 40 percent rating each under Diagnostic Code 8520, which affords him a higher evaluation for that level of disability than either Diagnostic Code 8521 or 8526. As his muscle strength remains normal, and he continues to have some sensation, though decreased, the Board finds that his symptoms do not meet the level of severe incomplete paralysis under any of these codes. Additionally, the medical evidence of record specifically shows that the Veteran does not have complete paralysis of the sciatic, femoral or common peroneal nerves. His muscle tone and strength are normal, he has not exhibited foot drop, paralysis of the quadriceps muscles, slight drop of his toes, or the inability to dorsiflex his foot or move his knee. As such, ratings for complete paralysis are not warranted. Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds that the evidence does not present an exception disability picture, and that the available schedular evaluations are adequate. The Veteran exhibits common symptoms of diabetics with peripheral neuropathy, and his symptoms are contemplated by the rating criteria. The rating criteria under 38 C.F.R. § 4.124(a) are not specific when addressing incomplete paralysis of the nerves listed in the section. The rating criteria instead provides a scale of mild to severe, with instruction that sensation-only symptoms should not be rated higher than the moderate level. Specific symptoms for each nerve listed are addressed only if there is complete paralysis. This criteria therefore allows for the Board to contemplate all symptoms associated with the peripheral neuropathy in determining the level of severity. As noted above, the Veteran continues to have some sensation of his bilateral lower extremities, and has normal muscle tone and strength bilaterally. Physicians have determined that he does not have incomplete paralysis of the sciatic and femoral nerves, thus ratings for complete paralysis are not warranted; however, by taking into consideration the severity of his symptoms the Board has awarded a 40 percent rating under Diagnostic Code 8520. A 40 percent rating under Diagnostic Codes 8521 and 8526 are of the level of severity of complete paralysis. Additionally, in a January 2013 rating decision, the Veteran was granted service connection for his amputated left toe as a complication of his diabetes. In conclusion, there is nothing in the record to indicate that the Veteran's peripheral neuropathy present an unusual disability picture so as to warrant consideration of an extraschedular evaluation. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. The Board has considered additional staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted as the evidence does not reflect substantial variations in the severity of the symptoms over time beyond that discussed above. Since the preponderance of the evidence is against additional increases, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation of 20 percent for diabetic polyneuropathy of the left lower extremity prior to October 20, 2008 is granted. Entitlement to an evaluation of 40 percent for diabetic polyneuropathy of the left lower extremity from October 20, 2008 is granted. Entitlement to an evaluation of 20 percent for diabetic polyneuropathy of the right lower extremity prior to October 20, 2008 is granted. Entitlement to an evaluation of 40 percent for diabetic polyneuropathy of the right lower extremity from October 20, 2008 is granted. REMAND A TDIU is provided where the combined schedular rating for service-connected disabilities is less than total, i.e., less than 100 percent. 38 C.F.R. § 4.16(a). Here, the Veteran has a combined 100 percent evaluation. However, the Board is cognizant that under Bradley v. Peake, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for combined service-connected disabilities in order to determine the veteran's eligibility for special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). 22 Vet. App. 280, 294 (2008). In the instant case, the Veteran is not in receipt of SMC under section 1114(s). Thus, as he has a 70 percent rating for post-traumatic stress disorder (PTSD), if it is determined that he is entitled to TDIU based on his other service-connected disability, he is potentially eligible for SMC under section 1114(s). Accordingly, under Bradley, the Board finds that, as part of the Veteran's claims for higher rating, the AOJ should consider whether TDIU is warranted for any particular service-connected disability or disabilities other than PTSD even though a schedular 100-percent combined is already in effect in order to determine the veteran's eligibility for SMC under section 1114(s). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO is to provide the Veteran corrective VCAA notice which includes an explanation of the evidence necessary to establish TDIU, and supply the Veteran with a VA Form 21-8940. 2. After receiving a completed VA Form 21-8940, the RO/AMC should forward VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to any former employers listed on the VA Form 21-8940. 3. A VA physician should review the claims file and address whether or not the Veteran's service-connected disabilities other than PTSD (to include such disabilities in combination) render him unable to secure and maintain substantially gainful employment, to include describing the disabilities' functional impairment and their impact on physical and sedentary employment. If the evaluator determines that the Veteran's disabilities rendered him unemployable, then the evaluator should indicate which disabilities and their associated symptoms render the Veteran unemployable. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs