Citation Nr: 1325871	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  10-42 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating for numbness of the right lower extremity, currently rated as 20 percent disabling.

2.  Entitlement to automobile and adaptive equipment or adaptive equipment only.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel





INTRODUCTION

The Veteran served on active duty from January 1945 to July 1946. 

These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision that denied the claims on appeal.

In October 2010, the Veteran raised a claim for service connection for a left leg disability and back disability secondary to his service-connected right leg disability.  The Board refers those claims to the RO for appropriate development.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The competent and probative medical evidence demonstrates that the Veteran's peripheral neuropathy of the right lower extremity is characterized by symptoms and manifestations that are no more than mild in degree.

2.  The veteran's service-connected disability has not resulted in loss or permanent loss of use of one or both feet; loss or permanent loss of use of one or both hands; permanent impairment of vision of both eyes with central visual acuity of 20/200 or less in the better eye, with corrective glasses, or a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20° in the better eye. The service-connected disorder also has not resulted in ankylosis of one or both knees or one or both hips. 




CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 20 percent for the peripheral neuropathy of the right lower extremity are not met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, Diagnostic Code 8520 (2012). 

2.  The criteria for eligibility for assistance in the purchase of an automobile or other conveyance and adaptive equipment, or adaptive equipment only, have not been met.  38 U.S.C.A. §§ 3901, 3902, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.808 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not in the 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, 186 (2002). 

These notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). 

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a February 2010 letter, sent prior to the initial May 2010 rating decision, advised the Veteran of the evidence and information necessary to substantiate his increased rating and adaptive equipment claims, as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, the letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. 

Relevant to the duty to assist, the Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal.  The Board has also reviewed the Veteran's paperless Virtual VA and VBMS claims files.  The Veteran has also been afforded VA examinations in May 2010 and January 2012 to determine the nature and severity of his peripheral neuropathy.  The Board finds these examinations to be adequate in order to evaluate the Veteran's disability as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant legal criteria.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's claims and no further examination is necessary. 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. 

II.  Analysis

Increased Rating

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating 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).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's peripheral neuropathy of the right lower extremity has been rated as 20 percent disabling under Diagnostic Code 8599-8520.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2012).  DC 8599 refers to an unlisted disability of the neurological system.  DC 8520 pertains to paralysis of the sciatic nerve.  38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 

Turning to the evidence of record, in January 2010, the Veteran's private physician stated that due to the Veteran's diabetic neuropathy, the Veteran had a paralyzed right leg and could not operate his foot pedals.  Therefore, he was in need of hand controls so that he could continue to be mobile and drive his truck.

In February 2010, the Veteran stated that his right leg disability had worsened and he experienced freezing of the leg.  In March 2010, the Veteran stated that he fell quite often because his leg would give way.  

Private treatment records reflect that in March 2010, the Veteran was noted to have had bilateral knee replacements in 2001.  He had signs and symptoms of neuropathy in both feet.  He was also found to have radicular pain down the legs thought to be related to his spinal stenosis.  A March 2010 private medical statement reflects that the Veteran had significant neuropathy and also symptoms from his back that radiated to his legs.

On May 2010 VA examination, the Veteran reported getting a tingling and numbness sensation of the right lateral thigh and side of the leg that would occur spontaneously.  He also had numbness in both feet, with a history of bilateral lower extremity neuropathy.  He walked very little at home, using a cane and an electric scooter.  He had a pickup truck with a hand control because he could not use his right leg.  Physical examination revealed monofilament and pinprick sensation was absent at the L3 dermatomal area in the lower leg and thigh, and the L5-S1 dermatomal area of the leg and foot.  Muscle strength was 5/5, but the right foot dorsiflexor and planter flexor was 4/5.  There was no muscle atrophy in the right leg.  Knee reflex was +1.  Ankle reflex was absent.  The diagnosis was mild peripheral neuropathy of both lower extremities.  He did not have diabetes mellitus, and his type of peripheral neuropathy was seen in people of his age due to degeneration of the nerves.  His mild right foot weakness was related to his service-connected condition, not due to his mild sensory neuropathy. 

In June 2010, the Veteran's private physician stated that the Veteran's neuropathy of the right lower extremity was moderately severe.

On January 2012 VA examination, the Veteran reported that he had right leg pain since service but that about three to four years ago he started having increased numbness and could not tell where his foot was.  Physical examination revealed that muscle strength of the knee and ankle was 4/5, bilaterally.  He had +1 reflexes, bilaterally.  On the right, there was decreased sensation in the upper anterior thigh, the thigh and knee, the lower leg, and the foot and toes.  There were no trophic changes.  He had a slow, antalgic gait with the use of a cane.  The sciatic nerve was normal, the external popliteal nerve showed mild incomplete paralysis, the musculocutaneous nerve showed mild incomplete paralysis, the anterior tibial nerve showed mild incomplete paralysis, and the external cutaneous nerve of the thigh showed mild incomplete paralysis.  There was no indication that the disability function was equally well served by amputation or prosthesis.  

In this case, the Board finds that the competent and probative medical evidence weighs against the assignment of a rating higher than 20 percent.  Although the Veteran had submitted medical statements that his right leg disability is moderately severe or severe, the statements have not been accompanied by any physical findings to support such conclusions, and thus are less probative or persuasive to the Board.  Rather, the two VA examinations conducted during the appeal period have both shown no more than mild neurological impairment.  Currently, the Veteran's 20 percent rating under DC 8520 contemplates moderate incomplete paralysis of the nerve, which is higher than the medical evidence actually demonstrates, thus a higher rating is not warranted.  Because the 2012 VA examiner found that the Veteran's neurological impairment affects nerves other than the sciatic nerve to a mild degree, the Board reviewed DC 8521, pertaining to the external popliteal nerve, DC 8522, pertaining to the musculocutaneous nerve, DC 8523, pertaining to the anterior tibial nerve, and DC 8529, pertaining to the external cutaneous nerve, however, those codes do not offer a higher rating for mild incomplete paralysis.  Nor are separate ratings appropriate, as the current 20 percent rating contemplates the Veteran's symptoms of numbness, loss of reflexes, and instability of the leg.  To also grant him separate ratings under the other neurological criteria would amount to impermissible pyramiding, as there are no symptoms that have not already been accounted for by the current 20 percent rating.  Accordingly, a rating higher than 20 percent is not warranted.

III.  Other Considerations

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record.  In this regard, the Veteran has not stated that his right leg disability has prevented employment during the appeal period and on 2012 VA examination, his right leg disability was found not to prevent employment.  Therefore, the Board finds that an implied claim for a TDIU has not been raised by the record and the evidence does not otherwise indicate that he is unemployable due to his right leg disability.

The Board has also considered whether an extra-schedular rating is warranted.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right leg disability with the established criteria found in the rating schedule.  As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated.  There are no additional symptoms that are not addressed by the rating schedule.  Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability.   As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Moreover, to the extent that the Veteran's right leg disability may interfere with his employability, such interference is addressed by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, the evidence reflects that his symptoms have remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted.

Automobile and/or Adaptive Equipment

The Veteran contends that his right leg disability prevents him from driving and that he meets the criteria for a certificate of eligibility for assistance in acquiring special adaptive equipment for his automobile.

The veteran contends that he is entitled to an automobile or other conveyance and adaptive equipment based on impairment due to his service-connected disabilities. A certification of eligibility for financial assistance in the purchase of one automobile or other conveyance in an amount not exceeding the amount specified in 38 U.S.C. 3902  (including all State, local, and other taxes where such are applicable and included in the purchase price) and of basic entitlement to necessary adaptive equipment will be made where the claimant meets the requirements of paragraphs (a), (b) and (c) of this section. 

(a) Service. The claimant must have had active military, naval or air service. (b) Disability. (1) One of the following must exist and be the result of injury or disease incurred or aggravated during active military, naval or air service; (i) Loss or permanent loss of use of one or both feet; (ii) Loss or permanent loss of use of one or both hands; (iii) Permanent impairment of vision of both eyes: Central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20° in the better eye. (iv) For adaptive equipment eligibility only, ankylosis of one or both knees or one or both hips. 

The term adaptive equipment, means generally, that equipment which must be part of or added to a conveyance manufactured for sale to the general public to make it safe for use by the claimant and to assist him or her in meeting the applicable standards of licensure of the proper licensing authority. 38 C.F.R. § 3.808(e) . 

In February 2010, the Veteran stated that due to the severity of his right leg disability, he could not operate his vehicle safely.  He used a cane and had difficulty walking.  He needed a vehicle with hand controls.

In June 2010, the Veteran's private physician stated that the Veteran needed a hand control for his pickup truck because his right leg was weak and semi-paralyzed.

In this case however, because the evidence as described above does not demonstrate that the Veteran had permanent loss of use of his right foot, but to the contrary can use his right foot with the assistance of a walker, the claim must be denied.  Despite the private medical statements that the Veteran's right leg was paralyzed or semi-paralyzed, the two VA examinations, which included physical examination, did not demonstrate a disability commiserate with loss of use of the right leg.  In addition, there is no evidence that he has loss or permanent loss of use of one or both hands; permanent impairment of vision of both eyes with central visual acuity of 20/200 or less in the better eye, with corrective glasses, or a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20° in the better eye.  The service-connected disorder also has not resulted in ankylosis of one or both knees or one or both hips.  Thus, the competent, probative, and persuasive evidence weighs against the claim, and the claim must be denied.


ORDER

A rating in excess of 20 percent for numbness of the right lower extremity is denied.

Entitlement to a certificate of eligibility for assistance in acquiring an automobile or other conveyance with special adaptive equipment, or for special adaptive equipment only, is denied. 



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs