Citation Nr: 1327802 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-01 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for diabetes mellitus with erectile dysfunction and retinopathy. 2. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from November 1986 to September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. By that rating action, the RO, in part, continued a 40 percent disability rating assigned to the service-connected diabetes mellitus with erectile dysfunction (hereinafter "diabetes mellitus"). The RO also awarded service connection for peripheral neuropathy of the right and left lower extremities; initial 10 percent disability ratings were assigned, effective October 25, 2008--the date of a VA examination report reflecting that the presence of these disabilities as complications of his service-connected diabetes mellitus. The Veteran appealed this rating action to the Board. By an August 2012 rating action, the RO added the Veteran's noncompensable retinopathy to his service-connected diabetes mellitus. (See August 2012 rating action). In a September 2012 statement to VA, the Veteran raised the issue of entitlement to a skin disability as secondary to his service-connected diabetes mellitus. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the entire period of the appeal, the Veteran's service-connected diabetes mellitus is not shown to have been manifested by episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 2. Throughout the appeal period, the service-connected peripheral neuropathy of the right and left lower extremities has been manifested mild, incomplete paralysis as evidenced by parethesias, loss of sensation of the feet into the shins and dysesthesias. The Veteran had normal muscle tone and gait with no evidence of gait disturbance, muscle atrophy, loss of muscle tone or impairment, or paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. 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 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 a 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via an October 2008 letter of the evidence that was necessary to substantiate his increased evaluation claim, and his and VA's respective duties for obtaining evidence. This letter predated the initial adjudication by the RO in January 2009. Nothing more was required. In addition, the Board notes that in Vazquez-Flores, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) held that in increased evaluation claims, VA must inform the claimant that, in order to substantiate a claim, he or she must provide (or ask the VA to obtain) medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that such worsening has on the claimant's employment and daily life. Further, if the diagnostic code under which the claimant is currently rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by providing the evidence described above (such as a specific measurement or test result), then VA must give at least general notice of that requirement. Additionally, VA must inform the Veteran that if he or she is assigned a higher rating, that rating will be determined by applying relevant diagnostic codes, which generally provide for disability ratings between 0 and 100 percent, based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. at 43. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision vacating and remanding the above-summarized decision of the Court. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Specifically, the Federal Circuit held that only "generic notice," and not "Veteran-specific" notice is required under 38 U.S.C.A. § 5103(a) in response to the "particular type of claim." With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service- connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Accordingly, the Federal Circuit vacated the decision of the Court insofar as it requires VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. Id. Therefore, in the instant case, there has been an intervening change in the law with respect to the required VCAA notice in an increased rating claim. The Federal Circuit recognizes three exceptions to the law of the case doctrine, to include when the controlling authority has since made a contrary decision of law. See Chisem v. Brown, 8 Vet. App. 374 (1995); see also Leopoldo v. Brown, 9 Vet. App. 33 (1996) (per curiam). As such, the heightened VCAA notice requirements under Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), are no longer required. The Board next notes that the Veteran is challenging, in part, the initial 10 percent disability ratings assigned following the grants of service connection for his peripheral neuropathy of the right and left lower extremities. In Dingess, the Court held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91; also see Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the initial evaluation claims decided herein. With regard to the duty to assist, the Veteran's service treatment records and available pertinent post-service VA and private medical records have been obtained and associated with the Veteran's physical claims files, as well as those uploaded to his Virtual VA claims file. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 . As such, there is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. 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. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded a VA examination in connection with his claims, most recently, in April 2011. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination results obtained in this case are adequate, as the April 2011 VA examination report is predicated on a reading of pertinent medical records and provides findings relevant to the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. See 38 C.F.R. § 3.159(c)(4). 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. Laws and Regulations Increased Rating-general criteria Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, such as the case with the Veteran's service-connected diabetes mellitus, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection, such as the case with the Veteran's claim for initial ratings in excess of 10 percent for his peripheral neuropathy of the right and left lower extremities, and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. III Merits Analysis (i) Diabetes Mellitus The Veteran seeks a disability rating in excess of 40 percent for his service-connected diabetes mellitus. The Veteran's service-connected diabetes mellitus is currently assigned a 40 percent disability evaluation pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under that diagnostic code, a 40 percent disability evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability evaluation is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent evaluation is contemplated for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Board finds that throughout the appeal period, the evidence of record does not support the assignment of the next higher disability rating of 60 percent for the service-connected diabetes mellitus. October 2008 and April 2011 VA diabetes examination reports and VA treatment records, dated from March 1996 to August 2012 contained in the Veteran's physical claims files, as well as those uploaded to his Virtual VA claims file, uniformly disclose that the Veteran took insulin more than once daily, was on a restricted diet and regulated his activities. Regarding the criteria involving regulation of activities, medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007) (holding that medical evidence is required to show that occupational and recreational activities have been restricted, for purposes of Diagnostic Code 7913 providing a 40 percent disability rating for diabetes when the diabetes requires insulin, restricted diet, and regulation of activities). In this case, the October 2008 VA examiner indicated that the Veteran's diabetes mellitus had, at most, a moderate effect on his ability to perform chores and engage in sports/recreation and had caused weakness and fatigue. (See October 2008 VA examination report). In addition, an April 2011 VA examiner concluded that the Veteran's diabetes mellitus had caused a lack of stamina and weakness or fatigue, which had increased his absenteeism and tardiness at his place of employment. With regards to hypoglycemic reactions, the above-cited VA examination and treatment reports show that the Veteran has experienced episodes of hypoglycemia reactions or ketoacidosis, but that they did not require hospitalization. The Board acknowledges the Veteran's written statement to VA, dated in December 2008 and September 2012, in which he relates that VA had prescribed him Glucagon kits that he self-administered four (4) to six (6) times a year in order treat his hypoglycemic condition. The Veteran related that but for these kits, he would have to visit the emergency room. (See VA Form 21-4138, Statements in Support of Claim, dated and signed by the Veteran in December 2008 and September 2012). VA treatment reports, dated in February 13, and May 19, 2009, confirm the Veteran's assertion and show that VA had been prescribed him Glucagon emergency kits in February and May 2009. (See February 13, and May 19, 2009 VA treatment reports denoting that one of the Veteran's active outpatient medication was a one milligram Glucagon emergency kit that was to be used under the skin once as needed for low blood sugar). Thereafter, VA treatment reports, dated from November 2009 to August 2012, do now show that VA had continued to prescribe the Veteran Glucagon kits for the treatment of hypolglycemic reactions. (See November 2009, September 2011 and July 2012 VA treatment reports). Finally, the Veteran's service-connected diabetes mellitus has manifested findings of both compensable (peripheral neuropathy of the right and left lower extremities) and noncompensable (erectile dysfunction and diabetic retinopathy) manifestations due to his service-connected diabetes mellitus. The above-cited evidence contains evidence of insulin more than once daily, restricted diet, moderate impact on chores and recreational pursuits, an effect on occupational activities as evidenced by increased absenteeism and tardiness, and, prior to May 19, 2009, self-administered Glucagon kits at least four (4) times a year in order to treat hypoglycemic events that might otherwise cause the Veteran to go to the emergency room. The Veteran's assertions that he would have to go to the emergency room if he did not have the Glucagon kits, and that this equates to the hospitalization requirement for the assignment of a 60 percent rating, has been considered. However, the Board does not find this assertion persuasive, for the following reasons. The criteria for the 60 percent rating contemplates the need for one or two "hospitalizations" per year (or twice a month visits to a diabetic care provider, et. al.). The Board does not equate a visit to the emergency room as a "hospitalization." First, an emergency care could be administered at an urgent care medical facility separate from a hospital facility. Second, "hospitalization" implies admission as an inpatient at a hospital, rather than a visit to a hospital emergency room for care that is completed the same day. Indeed, the fact that the Veteran was prescribed Glucagon kits so that that emergency care visits could be eliminated further supports the Board's conclusions that the "hospitalization" requirement within the meaning of Diagnostic Code 7913 was not met in this case. There is otherwise not evidence, under Diagnostic Code 7913, that the Veteran makes twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. In this regard, the relevant VA examination reports and clinical records show that the Veteran had sought treatment from his diabetic care provider monthly, at most. And the Veteran is otherwise shown to be separately rated for complications of his diabetes. Therefore, the Board finds that the preponderance of the evidence is against the assignment of the a rating in excess of 40 percent for diabetes mellitus throughout the period of the appeal. The criteria must be met for the next higher rating to be warranted. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (the joining of schedular criteria in the rating schedule by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met). Based on the above-cited evidence, the Board finds that the schedular criteria for a disability rating of the next higher rating of 60 percent for the service-connected diabetes mellitus have not been met. In view of the fact that the 60 percent criteria have not been met, the additional requirements for the assignment of a 100 percent rating are clearly not for assignment in this case. (ii) Peripheral Neuropathy of the Right and Left Lower Extremities The Veteran seeks initial ratings in excess of 10 percent for his service-connected peripheral neuropathy of the right and left lower extremities. By the appealed January 2009 rating action, the RO granted service connection for peripheral neuropathy of the right and left lower extremities; initial 10 percent ratings were assigned, effective October 24, 2008--the date of a VA examination report reflecting that the Veteran had peripheral neuropathy of the right and left lower extremities as a complication of his service-connected diabetes mellitus. The Veteran's peripheral neuropathy of the right and left lower extremities is rated under the criteria of 38 C.F.R. § 4.,124a, Diagnostic Code 8520. Under that code, incomplete paralysis of the sciatic nerve that is mild is assigned a 10 percent rating. A 20 percent rating is assigned for moderate incomplete paralysis, and 40 percent is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe, incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The Board notes that the rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6 (2012). The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, as is the case here, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. See 38 C.F.R. § 4.124a (2012). The above-cited October 2008 VA examination report, as well as an April 2011 VA examination report, uniformly disclose that the Veteran experienced paresthesias, loss of sensation in both feet into the shins and dysesthesias. At both of these examinations, the Veteran had normal muscle tone without any evidence of atrophy, impairment or abnormal movements. While there was evidence of neuritis and neuralgia at an October 2008 VA examination, these findings were absent at an April 2011 VA examination. In addition, there was no evidence of any paralysis at either the October 2008 or April 2011 VA examination. The October 2008 VA examination report disclosed that the Veteran ambulated with a normal gait. At each VA examination, the examiner concluded that the Veteran's peripheral neuropathy of the lower extremities did not have any significant effects on his occupational or daily activities. The April 2011 VA examiner characterized the Veteran's peripheral neuropathy as "mild." (See October 2008 and April 2011 VA examination reports). A January 2012 treatment record uploaded to the Veteran's Virtual VA claims file reflects that the Veteran had 4/5 power in his extremities and normal muscle tone. Overall, the Board finds that while some sensory loss in both feet was noted, mild sensory deficit is contemplated within the Veteran's 10 percent disability rating. As such, the Board finds that the preponderance of the evidence of record is against initial ratings in excess of 10 percent for the service-connected peripheral neuropathy of the right and left lower extremities at any time during the appeal period. IV. Hart and Fenderson Considerations For all the foregoing reasons, the Board finds that there is no basis for staged ratings for the service-connected diabetes mellitus and peripheral neuropathy of the right and left lower extremities, aside from the 60 percent disability rating assigned to the service-connected diabetes mellitus for the period prior to May 19, 2009. Hart and Fenderson, supra. Rather, the above-cited symptomatology associated with the service-connected diabetes mellitus and peripheral neuropathy of the right and left lower extremities is essentially consistent throughout the appeal period and is fully contemplated by the assigned 60, 40 and 10 percent disability ratings, respectively. V. TDIU Consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record shows that the Veteran is employed full-time, thus, the issue of entitlement to TDIU has not been raised. VI. Extraschedular Consideration In evaluating the Veteran's claims for a disability rating in excess of 40 percent for the service-connected diabetes mellitus and initial disability ratings in excess of 10 percent for peripheral neuropathy of the right and left lower extremities , the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran'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 extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected diabetes mellitus and peripheral neuropathy of the right and left lower extremities is inadequate. A comparison between the level of severity and symptomatology of these disabilities, with the established criteria found in the rating schedule, shows that the rating criteria reasonably describe these disabilities, as discussed in the preceding analysis. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that that the Veteran has required any hospitalization for his service-connected diabetes mellitus as a result of his Glucagon kits, or his peripheral neuropathy of the right and left lower extremities. There is no persuasive evidence in the record to indicate that these disabilities would cause any impairment with employment over and above that which is already contemplated in the assigned schedular ratings. In this regard, the Veteran has remained employed full-time during the entire appeal period. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 (2012) specifically sets out that "[g]generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected diabetes mellitus and peripheral neuropathy of the right and left lower extremities have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disabilities contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER For the entire period of the appeal, the assignment of a rating in excess of 40 percent disability rating for diabetes mellitus, is denied. An initial evaluation in excess of 10 percent for peripheral neuropathy of the right leg is denied. An initial evaluation in excess of 10 percent for peripheral neuropathy of the left leg is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs