Citation Nr: 1326582 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-03 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a disability rating of in excess of 30 percent for left leg status-post neuroma nerve block with residual motor and sensory loss, with foot drop, prior to March 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied an increased rating for left leg status post neuroma nerve block, and denied the issues of entitlement to service connection for right foot and ankle fracture, automobile and adaptive equipment or adaptive equipment only, special home adaption, special adapted housing, and special monthly compensation based on loss of use. The Veteran appealed all of the issues. In a March 2012 decision, the RO granted service connection for a right ankle disorder, automobile and adaptive equipment, and special adapted housing. As this represents a full grant of benefits sought, these issues are no longer before the Board. Cf. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (grant of a benefit extinguishes a pending appeal of the denial of the benefit before the Board). In contrast, while the March 2012 decision also increased the Veteran's disability rating to 80 percent for left leg status-post neuroma nerve block, this action did not constitute a full grant of the benefit sought as a higher rating was still possible prior to March 2011. Therefore, the Veteran's claim for an increased evaluation for the Veteran's left leg disability prior to March 1, 2011, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board observes that the Veteran mentioned his dissatisfaction with the effective date assigned for special month compensation in a statement received at the time of his June 2013 Board hearing. Review of the transcript of the hearing shows that the undersigned incorrectly noted that the date of the decision assigning the effective date for special monthly compensation was in March of 2013 rather than the correct date in March 2012. As the evidence does not show that the Veteran filed a notice of disagreement of the March 2012 decision assigning the effective date for the grant of special monthly compensation within one year of notification of the decision, the Board construes the Veteran's June 2013 statements as a new claim for an earlier effective date. Further, as the issue of entitlement to an earlier effective date for SMC based on loss of use of one foot has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it at this time. Accordingly, this issue is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's left leg status-post neuroma nerve block with residual motor and sensory loss has been manifested by complete paralysis from September 8, 2008. CONCLUSION OF LAW From September 8, 2008, the Board finds that the criteria for an 80 percent disability rating, for the Veteran's service connected left leg status-post neuroma nerve block with residual motor and sensory loss, with foot drop, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Codes (DCs) 8720-8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in October and December 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The October 2008 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and post-service VA and private treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Veteran was provided QTC examinations in February 2009 and March 2011 to determine the nature and severity of the Veteran's service-connected disability. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Rating Criteria and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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; 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. 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). The Board notes that staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the Veteran's left leg status-post neuroma nerve block is rated as 30 disabling prior to March 1, 2011, under 38 C.F.R. § 4.124a , Diagnostic Code 8521. From March 1, 2011, the Veteran's left leg status-post neuroma nerve block is rated as 80 disabling under 38 C.F.R. § 4.124a , Diagnostic Code 8720-8520. Under Diagnostic Code 8520, a 10 percent rating requires mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis, whereby the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2012). Diagnostic Code 8521 provides the rating criteria for disabilities of the external popliteal (common peroneal) nerve. A 30 percent disability rating requires severe incomplete paralysis. A 40 percent disability rating requires complete paralysis; foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of the proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8521 (2012). The term 'incomplete paralysis' indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). III. Analysis In an August 2008 letter from the Veteran's VA physician, M. C., M.D., stated that the Veteran's disease has contributed to atrophy, weakness, and foot drop of his left leg. While used this leg to assist in transferring, he did not have full and independent use. The Veteran had lost nearly all independent function in his left leg due to deterioration over the years, and could not use the limb to stand, walk, or rise up from a seated position. The examiner stated the Veteran had lost the use of his leg. During a February 2009 QTC examination, the Veteran complained of pain elicited by physical activity. Upon physical examination, the examiner noted decreased sensation of left lower leg for fine touch and pinprick and decreased motor strength of 3/5 of the left lower leg with foot drop. In a February 2011 letter, M. C., M.D., reported that the Veteran's has a profound left foot drop that requires him to wear an AFO brace at all times. The physician opined that his weakness in his left leg has progressed significantly since June 2008 and his prognosis for recovery of more independent mobility is poor. In a March 2011 QTC examination, the examiner noted weakness of the left ankle with strength of 0/5; left sensory function for the peripheral nerves was absent based on pinprick. There was no specific peripheral nerve identified as the Veteran presented symptoms were in a stocking distribution, but the peripheral nerve examination revealed neuralgia. There was motor dysfunction demonstrated by lack of ability to dorsiflex the left foot. The diagnosis was left leg status post neuroma nerve block with residual motor and sensory loss with foot drop. The most likely peripheral nerve involved was the sciatic nerve. During a June 2013 hearing, the Veteran asserted that his left leg disability was the same in 2009 as it was in 2011, and, therefore, warrants an increased disability rating prior to the currently assigned effective date. The Board finds that the Veteran's left leg status-post neuroma nerve block with residual motor and sensory loss, with foot drop was manifested by symptoms analogous to complete paralysis from September 8, 2008, the date the Veteran filed his increased rating claim. Throughout the appeals period, the Board finds evidence of loss of use of the left leg with left foot drop warranting an 80 percent disability rating. Resolving doubt in favor of the Veteran, the Board finds that the nerve affected by the Veteran's service connected left leg disorder is the sciatic nerve as noted in the March 2011 QTC examination. There is no evidence contradicting this finding during the appeals period. Under Diagnostic Code 8520, an 80 percent disability is warranted for complete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Board notes that in the March 2012 letter, the Veteran asserted that his first substantive appeal request was made in August 1996. While there was a substantive appeal filed for a past increased rating claim filed in August 1996, that claim was then denied by the Board in December 1998 and not appealed. The Veteran refiled a claim for an increased rating in September 2008. Therefore, September 8, 2008, is the earliest available effective date for the current increased rating claim. ORDER Entitlement to an 80 percent disability rating for left leg status-post neuroma nerve block with residual motor and sensory loss, with foot drop, from September 8, 2008, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs