Citation Nr: 1319687 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-36 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 10 percent disabling for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDING OF FACT The Veteran's peripheral neuropathy of the right lower extremity is manifested by wholly sensory involvement that is mild in degree. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8621 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). The Veteran's claim of entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated and additional notice is not required. Any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to assist has also been satisfied in this case as the RO has obtained the Veteran's service, VA, and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board has reviewed the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran was provided an opportunity to set forth his contentions during the hearing before the Board in November 2011 and he was afforded VA medical examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the April 2012 and February 2013 VA examination reports show that the examiners reviewed the claims file, examined the Veteran, and provided detailed reports of his symptoms. The August 2005 and November 2010 VA examination reports are adequate for rating purposes because the examiners examined the Veteran and provided detailed reports of his symptoms. While the examiners did not have the claims file for review in conjunction with conducting the examination and drafting the examination report, because the purpose of the examinations was to document the severity of his disorder at the time of the examinations, the Board finds that the Veteran has not been prejudiced by the examiners' inability to review his claims file. See Nieves-Rodriguez, 22 Vet. 295, 301 (2008); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (review of claims file not required where it would not change objective and dispositive findings made during medical examination). Notably, the Board remanded this issue in January 2013 for the scheduling of a VA examination. In the Board's remand instructions, the Board said that an electromyogram (EMG) must be conducted to determine the nerve(s) involved. The Veteran reported for a VA examination in February 2013. EMG studies were not conducted; however, in examination report, the examiner said the Veteran had no weakness in the lower extremity to indicate motor neuropathy and that "in the absence of clinical weakness, an EMG would not be helpful, as any findings would yet be indicative of a subclinical state." Thus, while EMG studies were not conducted, the Board finds that the remand instructions have been substantially complied with since the examiner stated that EMG studies would not provide any information at this stage. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also 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); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. See 38 C.F.R. Part 4 (2012). Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran seeks an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, which has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8621. Diagnostic Code 8621 applies to neuritis of the external popliteal nerve, also called the common peroneal nerve. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123. Under Diagnostic Code 8621, a 10 percent rating requires mild incomplete paralysis of the common peroneal nerve. A 20 percent evaluation requires moderate incomplete paralysis of the common peroneal nerve. A 30 percent rating requires severe incomplete paralysis. A 40 percent disability rating is warranted for complete paralysis as shown by complete foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension of proximal phalanges is lost, abduction of foot is lost and adduction is weakened, with anesthesia covering the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8621. 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 treatment records include a February 2005 record which shows diminished pedal pulses, bilaterally, and decreased sensation. May 2005 VA treatment records show complaints of chronic pain and tingling of the feet. Examination revealed diminished pulses in the lower extremities. During the August 2005 VA examination, the Veteran reported tingling and numbness in his feet. Sensations were intermittent, associated with sharp pains, and traveled up to his calf. Walking aggravated the condition but did not interfere with his activities of daily living. He had decreased vibration in the right toes. Other sensory, deep tendon and reflex tests were normal. Antalgic gait was attributed to pain in his hips and ankles. The diagnosis was small fiber, peripheral neuropathy. The examiner said the condition was very mild on objective examination and mainly involved the right toes. In August 2005, testing revealed diminished dorsalis pedis pulses but no other objective symptoms of neuropathy. In April 2006, the Veteran reported improvement with his diabetic neuropathies but testing showed weak pedal pulses and that his feet were partially insensate. In October 2006, the Veteran reported leg weakness, a feeling of heaviness, and fatigability. Neurologic testing found no paralysis or paresthesias but noted bilateral leg numbness. Testing showed sensory loss in the right foot. Reflexes were normal. September 2008 treatment records indicate decreased sensation and diminished pulses in the feet. March 2009 treatment records indicate diminished deep tendon reflexes and decreased muscular strength in the lower extremities. However, the Veteran was undergoing rehabilitation for right hip arthroplasty and the records are not clear whether the abnormalities are related to neuropathy or the surgical procedure. April 2009 treatment records show his feet were partially insensate. During the November 2010 VA examination, the Veteran reported burning and tingling, loss of sensation, and pain in both feet. The examiner noted that peripheral neuropathy had been stable since onset. The physical examination of the right lower extremity was normal, but the sensory examination revealed decreased vibration, pinprick, touch, and position sense. Motor testing was normal, as was muscle tone. The examiner diagnosed peripheral neuropathy and specifically found nerve dysfunction, neuritis, and neuralgia, but no paralysis. The examiner said the peripheral neuropathy had moderate effects on chores and recreation. During the November 2011 hearing before the Board, the Veteran said his right foot tingled and was numb at night and on awakening. He testified that doctors had not told him that the peripheral neuropathy had worsened, but he felt that it had. He experienced pain when putting weight on his foot. The April 2012 VA examination report indicates that after the diagnosis of diabetes mellitus, bilateral peripheral neuropathy with burning and numbness in the feet was diagnosed. Gabapentin was prescribed. Moderate, intermittent pain; moderate paresthesias and/or dysthesias; and moderate numbness in the right lower extremity were reported. Strength and deep tendon reflexes were normal for the right knee and right ankle. Light touch/monofilament testing was normal on the right knee, thigh, ankle, and lower leg. Light touch/monofilament testing of the right foot and toes was decreased. Position sense of the right lower extremity was normal; however, vibration sensation was decreased. Noted was "some" decreased hair growth on the lower extremities due to diabetic peripheral neuropathy. The sciatic and femoral nerves were normal; however, the common peroneal nerve was not addressed. The examiner found that the Veteran had lower extremity diabetic peripheral neuropathy but did not have paralysis of the lower extremities. The condition did not impact his ability to work. A VA examination conducted in February 2013, reported that the Veteran had aching in his legs up to his calves, with the right leg being worse than the left; tingling in the legs and feet; and numbness in the feet since 1996. The Veteran reported mild constant pain, mild paresthesias and/or dysthesias, and mild numbness in the right lower extremity. Strength and pinprick tests were normal. Deep tendon reflexes were normal in the right knee and hypoactive in the right ankle. Sensory tests were normal in the right lower leg and ankle and decreased in the right foot and toes. Vibration tests were mildly decreased over the toes. The examiner attributed smooth, shiny skin below mid calve level to peripheral neuropathy. Examinations of the sciatic, common peroneal, superficial peroneal, deep peroneal, internal popliteal, posterior tibial, and femoral nerves were normal. The examiner said the Veteran had no weakness in the lower extremity to indicate motor neuropathy but had sensory findings and "somewhat decreased tho' yet elicitable ankle jerks" consistent with diabetic sensory neuropathy. The examiner opined that the lower extremity neuropathy was mild. The medical evidence of record demonstrates that manifestations of the Veteran's service-connected peripheral neuropathy are wholly sensory and are mild in degree. See 38 C.F.R. § 4.124a. Incomplete or complete paralysis of the involved nerve has not been shown, and therefore, an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity is not warranted. Id. Although the Veteran's statements of worsening of this disorder are competent and credible evidence, his statements are outweighed by the medical evidence which addresses the specific objective and subjective criteria necessary for a rating in excess of that initially assigned for his service-connected peripheral neuropathy. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the United States Court of Appeals for Veterans Claims); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected peripheral neuropathy of the right lower extremity is evaluated as a disease of the peripheral nerves pursuant to 38 C.F.R. § 4.123a, Diagnostic Code 8621, the criteria of which is found by the Board to specifically contemplate the level of impairment caused by this disability. Id. The Veteran's peripheral neuropathy of the right lower extremity is manifested by wholly sensory involvement that is mild in degree. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the initial 10 percent disability rating. Evaluations in excess of 10 percent are provided for certain manifestations of peripheral neuropathy, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for a 10 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.123a, Diagnostic Code 8621; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected peripheral neuropathy of the right lower extremity, the evidence shows no distinct periods of time during the appeal period, when this varied to such an extent that a rating greater or less than 10 percent would be warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs