Citation Nr: 1328418 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 07-38 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for cataracts as secondary to service-connected diabetes mellitus. 2. Entitlement to an initial evaluation in excess of 10 percent prior to April 4, 2011 for peripheral neuropathy in the right lower extremity. 3. Entitlement to an evaluation in excess of 20 percent since April 4, 2011 for peripheral neuropathy in the right lower extremity. 4. Entitlement to an initial evaluation in excess of 10 percent prior to April 4, 2011 for peripheral neuropathy in the left lower extremity. 5. Entitlement to an evaluation in excess of 20 percent since April 4, 2011 for peripheral neuropathy in the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. These matters come before the Board of Veteran's Appeal (Board) on appeal from an October 2006 rating decision rendered by the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, the Veteran testified at a videoconference hearing before the undersigned. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A transcript of the hearing has been associated with the record. In May 2009, the Board, in pertinent part, remanded the claim for service connection for cataracts and the claims for increased rating for left and right lower extremity peripheral neuropathy. At that time, the Board also referred back to the RO a claim for TDIU. In pertinent part of an October 2010 Memorandum Decision from the United States Court of Appeals for Veterans Claims (Court), the Court modified the Board's decision to refer a claim for TDIU to instead reflect remand of that claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In compliance with the Court Memorandum, the Board remanded the claim for TDIU in July 2011. After additional development, the RO, in September 2012, awarded entitlement to TDIU, effective from February 23, 2006. The Veteran has not yet appealed the effective date of that award, and the issue is no longer before the Board. Also, in July 2011, the Board issued a decision in which it denied entitlement the claim for service connection for cataracts. In addition, the Board remanded the claims for increased rating for left and right lower extremity peripheral neuropathy in order to provide the Veteran with provided with a Supplemental Statement of the Case (SSOC) after consideration of additional evidence in the first instance. The Veteran appealed the part of the decision that denied entitlement to service connection for cataracts to the Court. In an April 2012 Order, the Court endorsed an April 2012 Joint Motion for Remand (JMR), vacated the Board decision denying entitlement to service connection, and remanded the matter for action complying with the joint motion. In March 2013, in compliance with the instruction in the Joint Motion, the Board remanded the claim for service connection for cataracts to the RO (via the Appeals Management Center (AMC)) for a new VA examination in order to determine the etiology of his cataracts, to include as proximately caused by his service-connected diabetes mellitus. At that time, the Board also remanded the claims for increased rating for left and right lower extremity peripheral neuropathy in order to provide the Veteran with provided with a SSOC after consideration of additional evidence in the first instance. After consideration of the additional evidence, the RO, in a June 2013 rating decision, increased the assigned evaluations from 10 to 20 percent disabling for each lower extremity, effective from April 4, 2011. Since this grant does not constitute a full grant of the benefit sought on appeal, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). A review of the documents contained in the Veteran's Virtual VA claims folder has been considered in conjunction with the decision below. FINDINGS OF FACT 1. The Veteran's current diagnosed cataracts did not have an onset until three decades after his separation from service, and the preponderance of the competent evidence of record is against a finding that his cataracts are otherwise related to his period of service, to include as proximately caused or aggravated by his service-connected diabetes mellitus. 2. Throughout the course of the appeal, the Veteran's disability due to peripheral neuropathy in the right lower extremity has more closely approximated symptomology characterized as moderate incomplete paralysis without evidence of foot drop, paralysis, constant weakness, muscle atrophy or any other symptomatology indicative of severe incomplete paralysis. 3. Throughout the course of the appeal, the Veteran's disability due to peripheral neuropathy in the left lower extremity has more closely approximated symptomology characterized as moderate incomplete paralysis without evidence of foot drop, paralysis, constant weakness, muscle atrophy or any other symptomatology indicative of severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for cataracts, to include as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. Prior to April 4, 2011, the criteria for a rating in excess of 20 percent, and not higher, for the peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, Diagnostic Code 8520 (2012). 3. Since April 4, 2011, the criteria for a rating of 20 percent for the peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, Diagnostic Code 8520 (2012). 4. Prior to April 4, 2011, the criteria for a rating in excess of 20 percent, and not higher, for the peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, Diagnostic Code 8520 (2012). 5. Since April 4, 2011, the criteria for a rating of 20 percent, and not higher, for the peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Concerns The Board has previously remanded the claims on appeal to the AMC for additional development and in consideration of due process. With respect to the service connection claim, the Board instructed the AMC in May 2009 to provide the Veteran with a VA examination in order to obtain a medical opinion on the etiology of the Veteran's cataracts, to include as secondary to his service-connected diabetes mellitus. Although the Board previously utilized the VA examiner's medical opinion from a February 2010 VA examination, in support of the denial of the service connection for cataracts, the parties to the April 2012 Joint Motion for Remand argued that the medical opinion was inadequate, because the examiner failed to provide a rational in support of his medical conclusion that the cataracts were age-related. In compliance with the April 2012 Joint Motion instructions, the Board remanded the matter again in March 2013 for a new VA examination. The Veteran was provided with a new VA examination in May 2013. In that examination report, the VA examiner specifically addressed whether the Veteran's cataracts were related to his period of service, to include as caused or aggravated by his service-connected diabetes mellitus, and the examiner supported the medical conclusion with a clear and concise rational statement. The Veteran's claim was then to be readjudicated in a June 2013 Supplemental Statement of the Case (SSOC). With regard to the increased rating claims, the Board remanded the matters in May 2009 to the AMC, in order for the Veteran to be afforded a new VA examination to evaluate the nature and severity of his disabilities. A February 2010 VA examination has been associated with claims folder. The Board found it necessary to remand the claims again in July 2011 and March 2013 to provide the Veteran with provided with SSOCs after consideration of additional evidence in the first instance. The Veteran's increased rating claims were most recently readjudicated via the June 2013 SSOC. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). VA sent a letter to the Veteran in April 2006 that addressed the notice elements concerning his claims. The letters informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claims, VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the available record includes service treatment records, service personnel records, post-service VA medical treatment reports, and the Veteran's own statements. To the extent that any more recent records may remain outstanding, there is no indication that they are necessary for a fair adjudication of the Veteran's claims. The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged. VA provided the Veteran with a VA general medical examination in August 2006 to determine the nature and etiology of diabetes mellitus, to include any secondary neurologic impairment. He was also provided with an additional VA diabetes mellitus examination in March 2008, in which the severity of his peripheral neuropathy in his lower extremities was evaluated as well. The Veteran has been provided with VA neurologic examinations in February 2010 and May 2011, in which the severity of his disabilities due to peripheral neurology were evaluated. In the August 2006, February 2010, and May 2011 VA examination reports, the VA examiners recorded the Veteran's medical history, his subjective complaints, and findings from clinical evaluation, and identified the nature of his neurologic impairment in his lower extremities. The Board finds that these VA examinations and are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). With respect to the Veteran's claim for entitlement to service connection for cataracts, VA has provided the Veteran with VA examinations in March 2008, February 2010, and May 2011 in order to obtain medical opinion to address whether his cataracts are related to his period of service, to include as secondary to any of his service-connected diabetes mellitus. As noted above, the parties to the April 2012 Joint Motion for Remand found that the February 2010 VA examiner's medical opinion was inadequate because the examiner failed to provide a rational in support of his medical conclusion that the diagnosed cataracts were age- related. The deficiencies in this medical opinion were addressed and resolved by the May 2011 VA examination report. In that VA examination report, the examiner rendered a medical opinion after a review of the Veteran's claims folder and findings from clinical examination, and supported his conclusion with a sufficient rational. The Board finds the May 2011 VA examination is adequate for adjudication purposes. See Barr, 21 Vet. App. at 303. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has retained representation and he been afforded the opportunity to testified before the undersigned Veteran's Law Judge. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. A disability which is aggravated by a service-connected disorder may be service connected, but compensation is only available for the degree to which that condition was made worse by the service-connected condition - only to the degree that the aggravation is shown. 38 C.F.R. § 3.310. In such a situation, VA laws require that the medical evidence must show a baseline level of severity of the nonservice-connected disease or injury, which is established by medical evidence created before the onset of aggravation. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran alleges entitlement to service connection for cataracts as secondary to his service- connected diabetes mellitus. In this regard, on his original application for compensation benefits, received by VA in February 2006, he alleged that his cataracts had an onset in 2003, and he specifically asserted that his cataracts were secondary to his diabetes mellitus. He reiterated this contention in a statement attached to his November 2007 VA Form 9. During his March 2009 Board hearing, the Veteran alleged that his doctors felt there was a relationship exists between cataracts and diabetes mellitus. See March 2009 Board Hearing Transcript, page 11. Although the Veteran does not assert (nor does the evidence of record show) that his current diagnosed cataracts are directly related to service, the Board will address the Veteran's claim for service connection on both a direct basis and a secondary basis. Again, the Board notes that in order to support an award of service connection on direct basis there must be evidence of a current disability, in- service incurrence or aggravation of a disease or injury; and medical nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. With respect to element (1), the medical evidence of record demonstrates that the Veteran has cataracts. See an April 2003VA treatment record ("incipient senile cataract") and a July 2005 VA treatment record ("mild active cataracts); see also a March 2008 VA examination report ("very early stage Grade I nuclear cataracts") and a May 2013 VA examination report ("Grade 2 nuclear cataracts"). It is clear that element (1), current disability, is satisfied. With respect to element (2), in-service disease or injury, the Veteran's service treatment records do not document any treatment or complaints involving eye problems, let alone findings indicative of cataracts. The Board observes that the evidence of record does not show that the Veteran had cataracts in service, at separation, or until three decades after his discharge from service. 38 C.F.R. §§ 3.303, 3.307, 3.309. In addition, the clinical evidence does not reflect, nor has the Veteran's provided lay statements to the effect that he has experienced symptoms of cataracts since service. Significantly, it was not until 2003, more than 30 years after the Veteran's discharge from service that he initially complained of, and sought treatment for, symptoms associated with cataracts. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (noting that that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Essentially, there is no evidence of cataracts first manifesting in service, and the Veteran has not asserted (nor does the evidence of record show) that there is any continuity of symptomatology over the 35 year time span between his separation from service and the first evidence of cataracts. See 38 C.F.R. § 3.303. As such, service connection may not be established based on chronicity in service, or post- service continuity symptoms first seen in service. 38 C.F.R. §§ 3.303(b) and 3.306. The competent evidence of record does not demonstrate that the Veteran's cataracts had an onset during his periods of service or within the first year after his separation from service. Element (2), an in-service disease, has not been satisfied, and the claim fails on a direct basis. For the sake of completeness, the Board will also briefly address the remaining Hickson element. See Luallen v. Brown, 8 Vet. App. 92, 95-96 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (finding that the Board has the fundamental authority to decide in the alternative). With respect to Hickson element (3), medical nexus, the Boards notes that there is no favorable medical nexus opinion of record which supports a direct medical link between the current diagnosis of cataracts and the Veteran's period of service. Rather, both the March 2008 and May 2013 VA examiners concluded that the Veteran's cataracts are "age-related" and not related to any incident, disease or injury during his period of service. Accordingly, Hickson element (3) is not met, and the claim would fail on this basis as well. Service connection is not warranted on a direct basis. With respect to the Veteran's alternative claim that his cataracts was caused or aggravated by his service-connected diabetes mellitus, the Board has already established that the Veteran has a current disorder and the record shows that he is service-connected for diabetes mellitus. In order to prevail satisfy element (3), there must be evidence of a nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin, 11 Vet. App. at 512. However, there is no medical opinion of record that links the Veteran's cataracts to his service-connected diabetes mellitus. The May 2011 VA examiner specifically stated that the Veteran's cataracts were less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected diabetes mellitus. In support of this medical conclusion, the May 2013 VA examiner noted that his cataracts were "due to the natural aging process of crystalline [lenses]. At this Grade 2 level it is not affecting his vision at this time." The examiner further noted that this medical opinion was rendered after a review of the claims folder and the findings from clinical examination. The Board finds the 2013 VA examiner's opinion to be highly probative as it was based on a thorough review of the Veteran's medical history and cited to the relevant evidence of record. The opinion is also consistent with the other evidence of record which does not demonstrate that the Veteran's cataracts are related to his diabetes mellitus. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Furthermore, the opinion was obtained from a licensed medical professional rather than a lay person. The Veteran has been accorded ample opportunity to present competent evidence in support of the claim. He has failed to do so. See 38 U.S.C.A. § 5107(a). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). The Board notes that the Veteran has alleged that his treating doctors have informed him that his cataracts are associated with his diabetes mellitus. The Board finds this statement to be too attenuated to constitute competent medical evidence of nexus for secondary service connection. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is too attenuated and inherently unreliable to constitute medical evidence). Moreover, the Board has reviewed the private and VA treatment records and medical statements. While these documents contain opinions linking other residual disabilities to diabetes mellitus, they do not state that the Veteran's cataracts are related to diabetes mellitus. Indeed, there is no competent evidence of record showing that the Veteran's cataracts are caused or aggravated by his diabetes mellitus. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In this case, assertions as to whether the Veteran's cataracts are related to service-connected diabetes mellitus are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disorder. While he is competent to report what he experienced, the Veteran is not competent to ascertain the etiology of his current disorder, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence to the 2013 VA examiner's opinion that was rendered by a licensed medical professional rather than a lay person in light of the complexity of the medical condition at issue. Based on the foregoing, Wallin element (3) is not met, the weight of the evidence is against the Veteran's claim, and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for cataracts is also not warranted on a secondary basis. Increased Rating 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 evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 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). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (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 the increased rating claim has been pending). Here, the Veteran has been assigned compensable ratings under the criteria associated with Diagnostic Code 8520, for paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, a 10 percent rating is warranted for 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. When there is complete paralysis, 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. The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.123. In this case, the Veteran seeks a higher assigned evaluation for his disability due to peripheral neuropathy in his right and left lower extremities. His disabilities are currently each assigned a 10 percent rating, prior to April 4, 2011, and thereafter a 20 percent evaluation, under Diagnostic Code 8520. In light of the evidence of record, the Board finds that although there has been some variation in the signs and symptoms of the Veteran's peripheral neuropathy in his lower extremities, his symptomatology has more closely approximated the criteria reflected by a 20 percent disability rating throughout the entire period under appeal. Accordingly, staged ratings are not warranted, and the Veteran's peripheral neuropathy of his right and left lower extremities should each be assigned a 20 percent rating for the entire period under appeal. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. In this regard, the Board finds that the radiculopathy in the left and right lower extremities more closely approximate to moderate, incomplete paralysis of the sciatic nerve throughout the entire period under appeal. The Veteran has consistently complained of pain and numbness in his feet, with occasional shooting pain up his leg. He has also consistently reported that he has difficulties with prolonged walking and standing and with climbing and descending staircases, because of the severity of his symptomatology in his feet. See March 2009 Board hearing transcript, page 4, as well as subjective complaints recorded in the various VA examinations reports. The medical evidence of record also demonstrates that the Veteran's disabilities have been manifested by decreased sensation, reflexes, and pulses, but without findings of muscle atrophy, muscle weakness, peripheral edema, or foot drops. The report of an August 2006 VA general medical examination shows that clinical evaluation of the Veteran's lower extremities revealed decreased pulses, decreased sensation, and decreased reflexes, but without evidence of muscle atrophy or weakness. Sensory examination during a March 2008 VA diabetes mellitus examination revealed an absent of sensation in the Veteran's great toes and heels. Similar findings of decreased sensation, pulses, and reflexes were recorded in the reports of a February 2010 and a May 2011 VA neurologic examinations. Overall, the Board finds that this constellation of manifestations more closely approximates the level of "moderate" neuropathy to warrant an evaluation of 20 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. This 20 percent evaluation includes consideration of the Veteran's reports of flare-ups involving his left and right lower extremities. 38 C.F.R. § 4.6. As such, a 20 percent evaluation and no more is warranted pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 for each lower extremity for the entire period under appeal. An evaluation in excess of 20 percent for either lower extremity has not been demonstrated by the evidence of record at any point during the period under appeal. There was no evidence of foot drop, paralysis, constant weakness, or muscle atrophy. Moreover, the Veteran's symptomatology in his lower extremities has been characterized as no more than moderate incomplete paralysis by both the February 2010 VA examiner and the Veteran's treating private physician. See the February 2010 VA examination report and an April 2011 private medical statement. As such, the criteria for a higher 40 percent rating under Diagnostic Code 8520 have not been met. See 38 C.F.R. § 4.7. Accordingly, the Veteran's disability due to peripheral neuropathy in his left and right lower extremities more closely approximates a 20 percent evaluation for the entire period under appeal. See 38 C.F.R. § 4.124a. To the extent that any further increase was denied, the preponderance of the evidence is against the claim and the appeal is denied. The Board has also considered whether an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. That provision provides that in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria, as demonstrated by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. According to 38 C.F.R. § 4.1, "generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability." The Veteran has not presented any evidence that the service- connected disability at issue have resulted in a unique disability that is not addressed by the rating criteria for neurologic impairments. As his symptomatology is contemplated by the rating schedules, referral for extraschedular consideration is not appropriate here. See Thun v. Peake, 22 Vet. App 111, 115-16 (2011). As noted in the Introduction, the Veteran has been assigned a total disability rating due to individual unemployability (TDIU) since February 23, 2006. The Veteran has not yet appealed the effective date of that award from the September 2012 rating decision; the issue is not currently on appeal. ORDER Entitlement to service connection for cataracts is denied. Entitlement to an initial evaluation of 20 percent, and no higher, prior to April 4, 2011 for peripheral neuropathy in the right lower extremity is granted. Entitlement to an evaluation in excess of 20 percent since April 4, 2011 for peripheral neuropathy in the right lower extremity is denied. Entitlement to an initial evaluation of 20 percent, and no higher, prior to April 4, 2011 for peripheral neuropathy in the left lower extremity is granted. Entitlement to an evaluation in excess of 20 percent since April 4, 2011 for peripheral neuropathy in the left lower extremity is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs