Citation Nr: 1315224 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 06-34 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the lower extremities, bilaterally. 2. Entitlement to a disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to a disability evaluation in excess of 10 percent for peripheral neuropathy of the left upper extremity. ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from June 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran was previously represented by the Disabled American Veterans (DAV). In March 2009, VA received notice from the Veteran revoking the DAV as his representative. The Veteran has proceeded with his claim without representation. The Board remanded the Veteran's claims in September 2011 for an additional VA examination. The examination was conducted in October 2011 with complete results as indicated by the remand. Thus, there has been full compliance with the prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran was granted individual unemployability by a March 2010 rating decision effective September 15, 2008. Thus, the Veteran has been receiving disability compensation at the 100 percent rate since that date. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's peripheral neuropathy in his upper extremities bilaterally manifests in mild incomplete paralysis. 2. The preponderance of the evidence is against a finding that the Veteran has peripheral neuropathy of the lower extremities confirmed by diagnostic testing. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right upper extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp 2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Codes 8615 (2012). 2. The criteria for a rating in excess of 10 percent for left upper extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp 2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Codes 8615 (2012). 3. Peripheral neuropathy of the lower extremities was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated therein and is not related to any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in November 2005 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, a February 2009 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a February 2009 communication, and the claim was thereafter readjudicated most recently in December 2012. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Regulations and Analysis Increased Rating Claims The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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 (2012). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability are sufficient. Above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. Diagnostic Code 8615 pertains to paralysis of the median nerve. Under Diagnostic Code 8615, a 10 percent rating is warranted for mild incomplete paralysis of the major or minor extremity. A 20 percent rating is warranted for moderate incomplete paralysis of the minor extremity. A 30 percent rating is warranted for moderate incomplete paralysis of the median nerve in the major extremity. A 40 percent rating is warranted for severe incomplete paralysis of the median nerve in the minor extremity. A 50 percent rating is warranted for severe incomplete paralysis of the median nerve in the major extremity. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture 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. 38 C.F.R. § 4.124a. The Board observes that the words "slight," "moderate," and "severe," are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. For historical purposes, the Veteran was originally granted service connection for peripheral neuropathy of the upper extremities, as secondary to his diabetes mellitus, in a January 2004 rating decision. Disability evaluations of 10 percent were assigned to each upper extremity under Diagnostic Code 8615, effective December 15, 2003. In September 2005, VA received a claim from the Veteran seeking entitlement to increased disability evaluations. This claim was denied by the RO in a March 2006 rating decision. VA received a timely notice of disagreement from the Veteran in April 2006, and in September 2006, the RO affirmed the previous denial. The Veteran appealed this decision to the Board in October 2006. In April 2005, the Veteran was afforded a VA examination. The Veteran complained of pain at a 10/10 level. There was no atrophy; the motor examination was normal; no hemiparesis or monoparesis; tone was normal; sensory examination was intact; and reflexes were +2 in the right bicep and +1 in the left bicep. A November 2007 VA diabetes examination indicates that the Veteran has normal temperature and color of the upper extremities with no trophic changes and normal radial pulses. There was no motor loss and no sensory loss. Deep tendon reflexes were at 2+. In February 2009, a VA peripheral neuropathy examination indicates that the Veteran's only functional impairment of the upper extremities was decreased grip on the right side. Sensory was normal on both sides. Reflexes of the biceps were 1+. There was no muscle atrophy. The Veteran was diagnosed with upper extremity peripheral neuropathy with paralysis, neuritis and neuralgia. The record demonstrates that the Veteran was afforded a VA examination for diabetes in June 2009. The extremity exam indicates that the Veteran's upper extremities had normal color and temperature with no trophic changes, no ulcers and normal pulses. There was no motor loss. The only sensory loss was to soft touch. The Veteran was provided an additional VA examination in October 2011. The Veteran complained of intermittent severe pain with severe paresthesias and numbness in the right upper extremity and mild paresthesias and numbness in his left upper extremity. The Veteran's muscle strength was 5/5 in his elbows, wrists, his grip and pinching his thumb to index finger. There was no muscle atrophy and deep tendon reflexes were at 1+ (hypoactive). The Veteran's sensory examination was normal and there were no trophic changes. The examiner indicated that all of the Veteran's nerves were normal and there was no functional impairment of any extremity; further noting that there was no clinical evidence of peripheral neuropathy in the upper or lower extremities. The examiner noted that decreased reflexes were secondary to poor relaxation. The Board concludes that the preponderance of the evidence does not demonstrate that the Veteran's peripheral neuropathy of the left and right upper extremities approximates moderate incomplete paralysis such that a higher rating would be warranted under Diagnostic Code 8615. The evidence, including the January 2008 and June 2012 VA peripheral neuropathy examinations, demonstrates that the Veteran has some decreased sensation and hypoactive reflexes on occasion but with no decreased strength in the upper extremities. The evidence does not show any muscular atrophy of the upper extremities. Additionally, the only functional impairment noted at the February 2009 VA examination was decreased grip on the right side. The October 2011 VA examination indicated no functional impairment of any extremity with no clinical evidence of peripheral neuropathy. Thus, the Board finds that the Veteran's current upper extremity peripheral neuropathy condition most closely approximates mild incomplete paralysis. In sum, the Board finds that throughout the appeal period, the evidence of record does not support disability ratings higher than 10 percent for right and left upper extremity neuropathy under Diagnostic Code 8615. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected peripheral neuropathy but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, a veteran who had active service in the Republic of Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to an herbicide agent during that service. When such a veteran develops acute or subacute peripheral neuropathy to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). 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 the behalf of the Veteran 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). According to a December 2003 VA examination, there was no electrodiagnostic evidence of peripheral neuropathy in the lower extremities. However, the examiner did diagnose the Veteran with peripheral neuropathy of the upper extremities at that time. An April 2005 VA examination report indicates there was no evidence of peripheral neuropathy in the lower extremities. A May 2005 private nerve conduction study (NCS) of the lower extremities indicated that there was no evidence of lower extremity peripheral neuropathy. A November 2007 VA examination report indicates that although the Veteran had decreased doralis pedal pulses, the examiner declined to diagnose the Veteran with peripheral neuropathy of the lower extremities. A VA examination in February 2009 revealed the Veteran to be suffering from diminished ankle reflexes bilaterally; however, the examiner declined to diagnose the Veteran with peripheral neuropathy of the lower extremities. During the Veteran's June 2009 VA examination, he reported numbness in the feet bilaterally. The examiner diagnosed the Veteran with peripheral neuropathy, but failed to indicate what extremities were in fact affected by the peripheral neuropathy. The Veteran submitted a July 2009 private treatment record which indicates that he had a normal arterial exam of the lower extremities without significant stenosis, aneurysm or abnormal Doppler signals. The Veteran's ankle/brachial indexes were normal bilaterally. A May 2011 VA examination indicates that the Veteran did not have atrophy, numbness, burning, abnormal sensation or abnormal reflexes in his lower extremities. The examiner declined to diagnose the Veteran with lower extremity peripheral neuropathy, noting that his subjective and objective symptomatology was not consistent with such diagnosis. Additionally, the Board notes that, most recently, a May 2011 VA treatment note indicates that the Veteran had dorsalis pulses decreased bilaterally. However, an August 2012 VA treatment note indicates that a complete diabetic foot examination was completed. The Veteran's feet were entirely normal with present dorsalis pulses bilaterally and no abnormal symptomatology identified. The Board is compelled to find that the preponderance of the evidence is against a finding that the Veteran has peripheral neuropathy of the lower extremities which is related to active service or any incident of active service to include exposure to Agent Orange. There are several medical opinions which are competent and provide probative medical evidence because they are factually accurate, and are supported by adequate rationale; none of the VA examiners have diagnosed the Veteran with peripheral neuropathy of the lower extremities and objective testing is of record which concludes that there are no abnormalities of his lower extremities which indicate peripheral neuropathy. Moreover, no other clinician has made a diagnosis of peripheral neuropathy or suggested that the claimed symptomatology is a disability related to diabetes mellitus or active service. Accordingly, the greater weight of the probative evidence is against finding that the Veteran has a current diagnosis of peripheral neuropathy which is related to active service or any incident of active service. As a result, the claim must be denied. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. The Board acknowledges the Veteran's statements regarding the claimed bilateral lower peripheral neuropathy. However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate the claimed symptoms to service or a service-connected disability. The Veteran, as a lay person, is not competent to self-diagnose peripheral neuropathy. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran has. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for peripheral neuropathy of the lower extremities, bilaterally is denied. Entitlement to a disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. Entitlement to a disability evaluation in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied. ______________________________________________ JAMES A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs