Citation Nr: 1318180 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-16 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected peripheral neuropathy of the left lower extremity. 2. Entitlement to a disability rating in excess of 20 percent for service-connected peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from November 1953 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which in part, denied increased disability ratings for the Veteran's service-connected diabetic peripheral neuropathy of the lower extremities. In April 2012, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2)(West 2002). This appeal contains a hybrid record; part is in a physical claims folder and in part is in the Virtual VA paperless claims processing system. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to aid and attendance benefits was raised in a January 2012 statement, 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. FINDINGS OF FACT 1. The Veteran's service-connected diabetic peripheral neuropathy of the left lower extremity is manifested by wholly sensory involvement, including numbness and decreased sensation, which most nearly approximates mild incomplete paralysis. 2. The Veteran's service-connected diabetic peripheral neuropathy of the right lower extremity is manifested by wholly sensory involvement, including numbness and decreased sensation, which most nearly approximates mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for the service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for a disability rating in excess of 20 percent for the service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice for his claims for increased disability ratings, by a letter dated June 2010. This notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim, the relative duties of VA and the claimant to obtain evidence, and notification of the laws regarding degrees of disability and effective dates. This letter also substantially complied with the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) VA has obtained service treatment records; VA treatment records; VA examination reports; assisted the appellant in obtaining evidence; and afforded him the opportunity to present testimony, statements and evidence. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. The Board finds that the VA examinations obtained in this case are adequate. The examiner performed physical examinations, considered the Veteran's statements, and provided the medical information necessary to address the rating criteria in this case. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the 'present level' of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the claim has been pending. This appeal is from the initial disability rating assigned upon the award of service connection for individual gastrointestinal disabilities which were then assigned a single evaluation. The entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for peripheral neuropathy of both lower extremities has been in effect since May 2001. The peripheral neuropathy is associated with the Veteran's service-connected type 2 diabetes mellitus and warrants the assignment of a separate disability rating for each extremity. Each lower extremity is assigned a separate 20 percent disability rating. In June 2010, the Veteran's representative filed a claim that generally asserted that increased disability ratings were warranted for the service-connected peripheral neuropathy of the lower extremities. In the September 2012 notice of disagreement, the representative's argument focused on unemployability and did not specifically address any symptoms of neuropathy of the lower extremities. Similarly, neither the June 2011 substantive appeal, nor the representative's September 2011 statement made any specific arguments related to the Veteran's service-connected peripheral neuropathy of the lower extremities. In April 2012, the Veteran presented testimony at a hearing before the undersigned Veterans Law Judge. He testified that he had atrophy of the legs and that he had numbness and burning of the legs, although he generally testified that his right leg was more severe with symptoms of pain and numbness. He asserted that he had difficulty walking and bending due to his service-connected peripheral neuropathy and not as a result of his nonservice-connected low back disability. He testified that he used a cane to walk, but also that he exercised with a stationary bicycle at a gym. He further testified that he had difficulty sitting or remaining in one position due to right sided symptoms and that he was prescribed medication for his symptoms of peripheral neuropathy of the lower extremities. VA treatment records from 2005 to the present do not reveal any notations of treatment for the Veteran's service-connected peripheral neuropathy of the lower extremities. An April 2005 treatment record did reveal complaints of numbness and tingling of the right lower extremity. A May 2005 anesthesiology note specifically identifies these reported symptoms as being symptoms of radiculopathy from the nonservice-connected low back disorder. A May 2005 VA podiatry note reveals that neurologic evaluation of the Veteran's feet revealed the lower extremities to be neurologically "grossly intact" to sharp and dull light touch and vibratory testing. A slightly decreased sensation in the right foot when compared to the left was noted. A July 2005 VA podiatry note reveals that the Veteran reported symptoms of right foot numbness without any burning or tingling. None of the VA treatment records reveal any active treatment of the Veteran's diabetic peripheral neuropathy of the lower extremities. A February 2011 VA outpatient treatment problem list indicates that the Veteran has diabetes mellitus without complications. No mention of diabetic peripheral neuropathy is indicated; rather the Veteran's nonservice-connected chronic low back pain, sciatica, and right hip arthritis are indicated as active problems. In July 2010 a VA Compensation and Pension examination of the Veteran was conducted. The Veteran reported having tingling, numbness, and loss of strength along with leg pain with walking short distances. Physical examination revealed normal muscle strength, control, and muscle tone of both lower extremities. Neuralgia of both lower extremities was indicated. On the left, pinprick and positional testing revealed normal results with slightly decreased vibratory sense. On the right, there was decreased pin prick sensation of the right toe along with abnormal positional sense of this toe. Slightly decreased vibratory sense was also indicted on the right. The diagnosis was bilateral lower extremity peripheral neuropathy without functional limitation. An October 2011 VA podiatry outpatient treatment record revealed that neurologic testing of the feet revealed that the Veterans sense of light touch was grossly intact. On monofilament testing there was a slight decrease in response (7/10) on the left and absence (0/10) on the right. Symptoms of paresthesias and burning were absent. In September 2012, the most recent VA Compensation and Pension examination of the Veteran was conducted. The examiner reviewed the record and specifically noted the Veteran's longstanding treatment for low back pain and right sided sciatica. The Veteran reported only mild symptoms of numbness of the left and right lower extremities. Symptoms of pain, paresthesias, and dysesthesias were not noted. The examiner specifically indicated that the Veteran has "no bilateral lower extremity pain related to just the diabetic neuropathy. His right leg neuropathy pain is due to the separate unrelated condition of sciatica. The only symptoms related to diabetic polyneuropathy is [sic] mild numbness in the left foot. The more severe numbness in the right foot is due to his right sided sciatica." Position sense testing was normal for the left lower extremity and decreased for the right lower extremity. Light touch testing of the feet and toes and vibration sensation testing was decreased for the left lower extremity and absent for the right lower extremity, as was cold sensation testing. Monofilament testing revealed mildly decreased sensation in a stocking distribution of the left lower extremity and diffuse loss of sensation in a stocking distribution of the right lower extremity. The examiner described these symptoms as mild on the left and moderately severe on the right. The examiner further indicated that the Veteran's more severe right lower extremity symptoms were the result of radiculopathy from the nonservice-connected lumbar spine disability. The examiner indicated that the diabetic peripheral neuropathy of both lower extremities was bilateral, sensory only, and would be best described as mild incomplete paralysis. The neurologic diagnostic code applicable to the Veteran's bilateral lower extremity peripheral neuropathy associated with his service-connected diabetes mellitus is Diagnostic Code 8520, concerning the evaluation of sciatic nerve paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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 is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." Neither the Rating Schedule nor the regulations provide definitions for words such as "mild" and "moderately severe." Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). The Veteran's service-connected peripheral neuropathy of the right and left lower extremities are each rated at 20 percent for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. This disability is manifested by wholly sensory involvement including numbness and mildly decreased sensation, including reduced vibratory sensation. There is no evidence that the Veteran's service-connected diabetic peripheral neuropathy of the right and left lower extremities is manifested by symptoms warranting the assignment of a disability rating in excess of 20 percent. His symptoms are wholly sensory and therefore the rating is for the mild, or at most, the moderate degree. Moderate incomplete paralysis of the sciatic nerve warrants a 20 percent evaluation. There is no evidence of complete paralysis of the sciatic nerve which is includes marked muscular atrophy of the lower extremities, foot dangling and dropping, no active movement of the muscles below the knee, or flexion of the knee being weakened or lost. The evidence of record is that the Veteran's service-connected diabetic neuropathy results in mild sensory impairment of the lower extremities. To the extent that more severe symptoms of sensory impairment and pain of the right lower extremity are present, they are the result of a nonservice-connected low back disability. The most recent VA examination report has adequately separated the symptoms related to the service-connected diabetic peripheral neuropathy from the nonservice-connected symptoms. Accordingly, entitlement to a disability rating in excess of 20 percent rating for peripheral neuropathy of the left lower extremity, and entitlement to a disability rating in excess of 20 percent rating for peripheral neuropathy of the right lower extremity is not warranted. Additionally, the Board has also considered whether a referral for extra schedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extra schedular consideration referral). The schedular evaluations for the Veteran's peripheral neuropathy of the left and right lower extremities are adequate. He does not have any symptoms from his service-connected disorder lower extremity peripheral neuropathy that are unusual or are different from those contemplated by the schedular criteria. The Veteran does not have "exceptional or unusual" disabilities; he merely disagrees with the assigned evaluation for his level of impairment. The available schedular evaluations for these service-connected disabilities are adequate. Referral for extra schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra schedular consideration is moot. See Thun, 22 Vet. App at 115. Finally, consideration of a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) is not warranted. The Veteran's prior claim of TDIU was previously adjudicated and granted. Based on the foregoing, the Board finds that a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is not warranted, and a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is not warranted. As there is a preponderance of evidence against the Veteran's claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied. A disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs