Citation Nr: 1314682 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 07-22 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased disability rating for diabetic peripheral neuropathy of the right upper extremity, currently rated as 10 percent disabling. 2. Entitlement to an increased disability rating for diabetic peripheral neuropathy of the left upper extremity, currently rated as 10 percent disabling. 3. Entitlement to an effective date earlier than November 25, 2009 for the award of a 20 percent rating for diabetic peripheral neuropathy of the right lower extremity. 4. Entitlement to an effective date earlier than November 25, 2009 for the award of a 20 percent rating for diabetic peripheral neuropathy of the left lower extremity. 5. Entitlement to an increased evaluation for diabetic peripheral neuropathy of the right lower extremity, currently evaluated as 20 percent disabling. 6. Entitlement to an increased evaluation for diabetic peripheral neuropathy of the left lower extremity, currently evaluated as 20 percent disabling. 7. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling. 8. Entitlement to an earlier effective date for service connection for post-traumatic stress disorder (PTSD). 9. Entitlement to an increased initial rating for PTSD, currently rated as 30 percent disabling. 10. Entitlement to a separate compensable rating for erectile dysfunction. 11. Entitlement to service connection for sleep apnea. 12. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert W. Gillikin II, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a September 2008 rating decision, the RO continued ratings of 10 percent each for peripheral neuropathy of the right lower and left lower extremities. In a February 2010 rating decision, the RO increased, effective November 25, 2009, the ratings for peripheral neuropathy of the right lower and left lower extremities to 20 percent each. That decision also denied service connection for sleep apnea and granted service connection for PTSD, assigning a 30 percent rating effective April 3, 2006, with a temporary total rating assigned from January 5, 2009, and a return to 30 percent effective March 1, 2010. In August 2010, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In October 2010, the Board denied the Veteran's claims for service connection for a back disability and increased ratings for diabetes mellitus and peripheral neuropathy of the lower extremities. The Veteran appealed those denials to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2012 memorandum decision, the Court affirmed the Board's denials of service connection for a back disability and increased rating for diabetes mellitus. The only issued remanded by the Court was the issue of entitlement to an earlier effective date for the increased 20 percent ratings for peripheral neuropathy of the bilateral lower extremities. The Court noted the Board's decision was otherwise affirmed. Significantly, the Court did not remand the issue of entitlement to ratings in excess of 20 percent for peripheral neuropathy of the bilateral lower extremities. Also in the October 2010 decision, the Board remanded the issues of entitlement to an earlier effective date for service connection for PTSD, a higher initial rating for PTSD, a separate rating for erectile dysfunction, and service connection for sleep apnea for issuance of a statement of the case (SOC). In December 2012, an SOC was issued regarding those issues, and the Veteran perfected an appeal the same month. In November 2010, the Veteran filed new claims for increased ratings for his diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and left knee disability, and a claim of entitlement to a TDIU. In a December 2011 rating decision, the RO awarded an increased 10 percent rating for the left knee disability, effective May 12, 2010, and denied the diabetes, peripheral neuropathy, and TDIU claims. Thereafter, the Veteran filed a timely notice of disagreement (NOD) and perfected his appeal with respect to the ratings assigned for the left knee and peripheral neuropathy of the bilateral upper and lower extremities, as well as the denial of a TDIU. Significantly, he did not appeal the denial of an increased rating for diabetes mellitus. In his March 2012 substantive appeal, the Veteran requested a Board videoconference hearing. However, in May 2012 he withdrew his request for a hearing and in July 2012, he waived his right to a hearing. Since the issuance of the most recent March 2012 SOC adjudicating the Veteran's left knee increased rating claim, the Veteran submitted additional VA medical records pertaining to his left knee disability. That evidence was accompanied by a waiver of consideration. Nevertheless, in light of the action taken below, consideration of that evidence should be taken by the RO. The Board observes that in July 2012 and November 2012 statements, the Veteran's attorney presented argument on the issue of entitlement to an increased rating for diabetes mellitus. As discussed, that issue is not currently before the Board. Nevertheless, the Board interprets the attorney's statement as a new claim for an increased rating for diabetes mellitus, and that issue is REFERRED to RO. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals procedural documents that are relevant to the issues on appeal. The Board notes that any future adjudication(s) should also take into account this paperless, electronic claims file. The issues of entitlement to service connection for sleep apnea; increased ratings for peripheral neuropathy of the bilateral upper and lower extremities, a left knee disability, and PTSD; a separate rating for erectile dysfunction; and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The competent evidence of record reflects that the Veteran did not file either formal or informal claims for service connection for posttraumatic stress disorder prior to April 3, 2006. 2. Prior to November 25, 2009, the Veteran's neuropathy of the left lower extremity was manifested by pain and paresthesias, with occasional decrease in reflexes, but no decrease in strength, muscle atrophy, or objective sensory disturbance, approximating no more than mild incomplete paralysis of the sciatic nerve. 3. Prior to November 25, 2009, the Veteran's neuropathy of the right lower extremity was manifested by pain and paresthesias, with occasional decrease in reflexes, but no decrease in strength, muscle atrophy, or objective sensory disturbance, approximating no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 3, 2006, for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5101, 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). 2. For the period prior to November 25, 2009, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8520 (2012). 3. For the period prior to November 25, 2009, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in January 2008 and October 2008 letters, the RO advised the Veteran of what information and evidence is needed to substantiate his claims for increased ratings for peripheral neuropathy of the lower extremities. Those letters also advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. The letters further advised him of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment and provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). In April 2006 and May 2009 letters, the RO advised the Veteran of what information and evidence is needed to substantiate his claim for service connection for PTSD. The foregoing letters also advised the Veteran of what information and evidence must be submitted by him and what information and evidence will be obtained by VA, how effective dates are assigned, and the type of evidence which impacts that determination. These claims were last adjudicated in February 2010 and December 2010. However, with respect to the claim for an earlier effective date for the grant of service connection for PTSD, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, private treatment records, hearing testimony, and legal briefs. The Veteran was also afforded a hearing before the Board in August 2010 relevant to the issue of entitlement to the evaluation of peripheral neuropathy of the lower extremities prior to November 25, 2009. The Veteran did not have a hearing on the claim for an earlier effective date for the award of PTSD. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ identified the issues on appeal, and the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for a higher rating. Additionally, the Veteran was represented by an agent who elicited from the Veteran his treatment history and his symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing currently or before the Court when this issue was argued there. Accordingly, the Board finds that the Veteran has not been prejudiced by any deficiency in the hearing and no further action pursuant to Bryant is necessary. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Moreover, the Veteran has been represented by an agent and subsequently by an attorney familiar with VA law during the course of the claim. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Earlier Effective Date for PTSD Generally, a specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151, 3.160 (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West Supp. 2012); 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2012). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2012). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2) (2012); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). The Veteran was discharged from active service on May 15, 1971. On April 3, 2006, the Veteran filed an original claim for service connection for PTSD. The claim was denied in a September 2006 rating decision because there was no evidence that the Veteran had a current diagnosis of PTSD or a verified stressor. The Veteran filed a notice of disagreement with this rating decision and timely perfected his appeal after the issuance of the statement of the case. Thereafter, the RO conceded the Veteran's stressor, and on VA PTSD examination in November 2009, the VA examiner diagnosed PTSD. In a February 2010 rating decision, the RO granted service connection for PTSD, effective from the April 3, 2006 date of claim. The Veteran contends that the effective date for the grant of service connection for PTSD should be earlier than April 3, 2006, because he filed a claim prior to that date. Specifically, the Veteran has asserted that the proper effective date for service connection for PTSD should be October 26, 2004, presumably because that is when he filed his initial claim for VA benefits for other disorders. No evidence or correspondence which can be construed as either formal or informal claims for service connection for PTSD was filed at any time prior to April 3, 2006, as the record reflects that the Veteran did not submit any statements prior to April 3 2006, that mentioned PTSD specifically or any intent to claim benefits for such disability. Indeed, while on October 26, 2004, the Veteran filed initial claims for service connection for a back disability, diabetes mellitus, hypertension, and hepatitis C, he did not mention PTSD or any other psychiatric disability at that time. The Board acknowledges that VA treatment records prior to April 3, 2006, show treatment for psychiatric problems and PTSD symptoms. However, despite some evidence of earlier treatment for PTSD symptoms, the record reflects that the Veteran did not file either a formal or informal claim for service connection for PTSD at any time until April 3, 2006. See Brannon v. West, 12 Vet. App. 32, 35 (1998) ("The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek [disability benefits]."). There is no correspondence in the record received prior to April 3, 2006, indicating an intent to apply for service-connected benefits for PTSD. Therefore, according to 38 U.S.C.A. § 5110(a) (West 2002) and 38 C.F.R. § 3.400 (2012), April 3, 2006, is the appropriate effective date for the grant of service connection for PTSD. Although there is some evidence of earlier treatment, the date of claim controls as it is later than the date entitlement arose. As a result, the Veteran is not entitled to an effective date earlier than April 3, 2006, for service connection for PTSD. In summary, the law provides that the earliest effective date that may be assigned for the grant of service connection for the Veteran's PTSD is the date of receipt of his original claim for such disability on April 3, 2006. See 38 U.S.C.A. § 5110(a) (West 2002); see also 38 C.F.R. § 3.400 (2012). Consequently, an effective date earlier than April 3, 2006, is not warranted for PTSD. Earlier Effective Date for the Award of a 20 Percent Rating for Diabetic Peripheral Neuropathy of the Lower Extremities The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). With regard to claims for increase, 38 U.S.C.A. § 5110(b)(2) provides that the effective date of an increased rating "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 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 diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran filed a claim for increased rating for his service-connected peripheral neuropathy of the lower extremities that was received at the RO on September 20, 2007. Therefore, the question is whether the Veteran's peripheral neuropathy of the lower extremities warrants an evaluation in excess of 10 percent at any time from September 20, 2006 to November 25, 2009. See 38 C.F.R. § 3.400(o)(2) (2012). For the period prior to November 25, 2009, the Veteran's peripheral neuropathy of the lower extremities has been rated as 10 percent disabling pursuant to Diagnostic Code 8520. Under that code, incomplete paralysis of the sciatic nerve warrants 10, 20, or 40 percent ratings if it is mild, moderate, or moderately severe. A 60 percent rating is warranted if there is incomplete paralysis of the sciatic nerve with marked muscular atrophy. A higher 80 percent rating is warranted for paralysis of the sciatic nerve that is complete; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakens or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. VA outpatient treatment records generally show that from 2005 to 2009, the Veteran was on daily medication for neuropathy. The Veteran reported paresthesias and pains in his feet. On VA examination in January 2008, the Veteran reported the course of his lower extremity peripheral neuropathy as progressively worse. Extremity examination revealed absent hair, dystrophic nails, but normal temperature, color, and pulses. Neurologic examination revealed normal coordination. The lower extremities exhibited full muscle strength on motor examination, and there was no functional impairment. Sensory examination revealed the lower extremities to be intact to vibration, pain, light touch, and position sense. Deep tendon reflexes were "1+" bilaterally for patellar and Achilles reflexes, but right and left plantar reflexes were normal. There was no muscle atrophy, abnormal muscle tone or bulk, foot slap, or foot drop. The examiner diagnosed subjective complaints of right and left lower extremity paresthesias with no clinical abnormality on examination. The examiner further found no effects of the peripheral neuropathy on the Veteran's activities of daily living. Thereafter, VA outpatient records show that in March 2008, reflexes in the Veteran's knees and ankles were normal. In May 2008, the Veteran noted that the medication for his neuropathic pain helped with his paresthesias and that he was able to walk further and without a cane. He also reported that he was going to the YMCA daily and walked on a regular basis. At that time, the Veteran's gait and stance were normal. In October 2008, during a three day evaluation for VA inpatient treatment, the Veteran reported his neuropathic pain levels as 3/10 and 4/10. He further indicated that he can tolerate a pain level up to 4/10 without medication. During June 2009 VA treatment, it was noted that the Veteran was not going to the YMCA anymore, but generally walked during the day. He again reported that the medication for his neuropathic pain helped with paresthesias in his feet and that he is able to walk further and does not need to use the cane as much. At that time, the Veteran had thigh numbness that was diagnosed as most likely Meralgia paresthetica, which was attributed to the Veteran's back disability resulting in compression of the L2-L3 nerve, and for which the Veteran was advised to lose weight and not to wear a tight belt. During a subsequent November 2009 VA examination for PTSD, the Veteran reported that he is active in church, sings in the choir, and is involved in incentive therapy where he works 5-6 hours per day, 5 days a week, taking things places for the physical therapy department and prosthetics. The examiner noted that recent incentive therapy notes in the computer indicate that he is doing well. The Veteran also reported that he sometimes goes fishing on weekends, enjoys cooking, and runs his own errands. The Veteran had another VA examination on November 25, 2009 to evaluate his peripheral neuropathy. He reported numbness and tingling in his toes and feet. He related having burning pain on the bottom of his feet. He also reported weakness and fatigue. He stated that the symptoms in his feet worsened with walking. He stated that severe back pain made him have to stop after walking about 30 feet. On examination, the Veteran's reflexes were normal. Monofilament and pinprick testing showed moderate peripheral neuropathy of the toes, feet, ankles, and legs to the mid-calves. Given the evidence showing full motor strength, intact sensation, and generally normal reflexes in the lower extremities during the period prior to November 25, 2009, the preponderance of the evidence supports a finding of incomplete paralysis that is no more than mild in severity. The Board acknowledges that on VA examination in January 2008, the Veteran was found to have reflexes of "1+" in the lower extremities. Nevertheless, motor and sensory testing was normal, and the examiner found no impact on the Veteran's activities of daily living at that time. Even further, despite the notation of "1+," the examiner specifically found that there were no clinical abnormalities on examination. Indeed, the Board notes that page 4 of the Appellant's Brief defining a 1+ deep tendon reflex as a slight response that may or may not be normal. The Board further points out that the Veteran was subsequently noted to have normal reflexes just two months later in March 2008, and then again during subsequent VA treatment and the November 2009 VA examination. In short, the VA examiner who noted the 1+ reflexes did not find them to be an impact on the Veteran's functional capacity. Moreover, at worst, such a finding is, as noted in Appellant's Brief, a "slight" response. Such finding, alone or when considered in conjunction with the other subjective complaints of pain and paresthesias, do not support a finding of more than mild incomplete paralysis. Further, the Board notes the VA examiner in January 2008, in response to a question on the form, indicated that the course of the neuropathy since onset was progressively worse. However, the onset date of the neuropathy was listed as 2000. Thus, since 2000, the neuropathy has progressively worsened. This statement does not suggest the extent of the worsening during the period relevant to this appeal and does not in any way establish that the "progressive worsening" was from a level of mild incomplete paralysis to a level of moderate incomplete paralysis. Rather, it is a general statement addressing basic history rather than specific findings. The physical examination of the Veteran performed at that time, however, addresses the specific medical findings, which the examiner found to be subjective paresthesias with no clinical abnormality on examination and no effects on the Veteran's activities of daily living. Thus, at best, the examiner's statement of progressive worsening since onset suggests that since 2000, the condition has worsened to the point where it resulted in only subjective paresthesias but no clinical abnormality and no functional effects on daily activities. Such findings reflect no more than mild incomplete paralysis of the sciatic nerve. Additionally, despite the Veteran's complaints of a worsening condition, the evidence shows that during the relevant period prior to November 25, 2009, the Veteran walked or exercised regularly; was able to run his own errands; participated in activities such as fishing, singing in a choir, and cooking; and, was doing well in incentive therapy which required him to walk during the day, five days a week. Accordingly, the Board finds that the evidence prior to November 25, 2009, more nearly approximates mild incomplete paralysis of the sciatic nerve of the left and right lower extremities, consistent with a 10 percent disability rating. A higher rating is not warranted as the symptoms described above reflect no more than mild incomplete paralysis. The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his bilateral lower extremity neuropathy for the period prior to November 25, 2009. The symptomatology noted in the medical and lay evidence during this period, has been adequately addressed by the 10 percent evaluations assigned and does not more nearly approximate the criteria for a higher evaluation at any time during the relevant period on appeal. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012); see also Hart, supra. The Board has also considered whether the Veteran's bilateral lower extremity neuropathy prior to November 25, 2009, presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology during the relevant period, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. His 10 percent ratings contemplate his subjective complaints and functional impairment. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an effective date prior to April 3, 2006, for a grant of service connection for PTSD is denied. Entitlement to an effective date prior to November 25, 2009 for the award of a 20 percent disability rating for peripheral neuropathy of the left lower extremity is denied. Entitlement to an effective date prior to November 25, 2009 for the award of a 20 percent disability rating for peripheral neuropathy of the right lower extremity is denied. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claims for service connection for sleep apnea; increased ratings for a left knee disability, PTSD, peripheral neuropathy of the bilateral upper and lower extremities; and a TDIU. Initially, a remand is necessary because there appears to be outstanding medical evidence that may be relevant to the increased rating claims on appeal. In this regard, while the Veteran has submitted VA treatment notes dated in October 2010, October 2011, and November 2011, showing ongoing VA treatment for service-connected disabilities, to include a left knee disability, no VA treatment records dated after January 2010 have been obtained by the RO. Furthermore, VA treatment records show that the Veteran has been receiving treatment for PTSD at the Vet Center. However, those records have not been associated with the Veteran's physical or electronic claims file. The Board further notes that, with respect to the TDIU claim, the Veteran has been involved in VA incentive therapy, and the 2009 VA examiner indicated review of the computerized notes of such therapy. However, these records do not appear to be contained in the claims file. Accordingly, remand is necessary to ensure there is a complete record upon which to adjudicate the Veteran's service connection, increased rating, and TDIU claims. In addition, the Veteran was last afforded a VA examination for his left knee disability in July 2010. Recent VA medical records submitted by the Veteran show that the Veteran underwent surgery for his left knee disability in October 2010 and began receiving Supartz injections in his left knee in November 2011. Because there may have been changes in the Veteran's condition, the Board finds that a new joints examination is needed to fully and fairly evaluate the Veteran's claim for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Similarly, the Board finds that remand of the Veteran's claim for an increased rating for PTSD is warranted for a new examination. The Veteran was last afforded a VA examination for is PTSD in November 2009, over three years ago. Because there may have been changes in the Veteran's condition, the Board finds that a new psychiatric examination is needed to fully and fairly evaluate the Veteran's claim for increased rating. Finally, the Board finds that remand of the Veteran's TDIU claim is necessary for a VA opinion as to whether his service connected disabilities render him unemployable. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have recently treated him for his PTSD, peripheral neuropathy, erectile dysfunction, and sleep apnea. After securing any necessary releases, the RO should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain relevant ongoing VA treatment records dating since January 2010 from the Salem VA Medical Center, and relevant treatment records from the Vet Center. In addition, obtain the VA incentive therapy records referenced by the 2009 VA PTSD examiner. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. Schedule the Veteran for a VA joints examination to determine the current manifestations and severity of his left knee disability. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported. The examiner should report the range of motion of the left knee, to include the point at which pain begins, as well as any functional loss due to pain, weakness, or diminished endurance. The examiner should indicate whether there is objective evidence of instability or subluxation of the left knee. In addition, the examiner should also indicate the impact of his left knee disability on occupational functioning, and should opine whether the service-connected physical disabilities (diabetes mellitus with erectile dysfunction, peripheral neuropathy of the bilateral upper and lower extremities, and left knee disability), when considered with his PTSD, render him unable to secure or follow a substantially gainful occupation, without regard to age or nonservice connected conditions. The reasoning for the opinion given should be provided. 3. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his PTSD. The examiner must review the claims folder in conjunction with the examination. The examination report should include a detailed account of all psychiatric pathology found to be present as well as a mental status examination. All tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's service-connected PTSD and indicate the impact of his PTSD on occupational and social functioning. Additionally, the examiner should also opine whether the service-connected PTSD, when considered in conjunction with his physical disabilities (diabetes mellitus with erectile dysfunction, peripheral neuropathy of the bilateral upper and lower extremities, and left knee disability) render him unable to secure or follow a substantially gainful occupation, without regard to age or nonservice connected conditions. The reasoning for any opinion given should be provided. 4. After the development requested above, and any additional development deemed necessary, has been completed to the extent possible, the record should be reviewed and the issues presently on appeal readjudicated. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs