Citation Nr: 1329905 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-33 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 20 percent for peripheral neuritis of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted entitlement to service connection for peripheral neuritis of the left lower extremity with an initial 20 percent evaluation assigned effective January 15, 2008. In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. The appeal was previously before the Board in September 2011 when it was remanded for additional development. The case has now returned to the Board for further appellate action. In May 2013, subsequent to issuance of the June 2012 supplemental statement of the case (SSOC), the Veteran submitted evidence pertinent to the claim on appeal. In the July 2013 post-remand brief, the Veteran's representative provided a waiver of initial consideration of the new evidence by the agency of original jurisdiction (AOJ). Thus, the Board will consider the claim on the merits. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. During the period prior to June 26, 2012, the Veteran's peripheral neuritis of the left lower extremity most nearly approximated moderate incomplete paralysis of the sciatic nerve. 2. During the period beginning June 26, 2012, the Veteran's peripheral neuritis of the left lower extremity most nearly approximated severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for peripheral neuritis of the left lower extremity during the period prior to June 26, 2012 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8620 (2012). 2. The criteria for a rating of 60 percent, but not higher, for peripheral neuritis of the left lower extremity during the period beginning June 26, 2012 are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for peripheral neuritis of the left lower extremity was granted in the June 2008 rating decision on appeal. An initial 20 percent evaluation was assigned effective January 15, 2008. The Veteran contends that an increased rating is warranted as his disability is productive of severe pain and neurological dysfunction of the left leg. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's peripheral neuritis is currently rated as 20 percent disabling under Diagnostic Code 8620 pertaining to neuritis of the sciatic nerve. Diagnostic Code 8620 utilizes the specific criteria contained in Diagnostic Code 8520 for rating paralysis of the sciatic nerve. Under this diagnostic code, mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (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. 38 C.F.R. § 4.124a. For the period prior to June 26, 2012, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's peripheral neuritis. The Veteran's disability most nearly approximated moderate incomplete paralysis of the sciatic nerve with symptoms such as decreased sensation, causalgia, and neuropathic pain. VA and private examinations conducted throughout the claims period also demonstrated full muscle strength without any muscle atrophy. The Veteran first complained of neurological symptoms affecting the left lower extremity during a November 2007 orthopedic consultation at the West Palm Beach VA Medical Center (VAMC). He reported experiencing pain, a pins and needles sensation around the area of his service-connected left leg scar, and some weakness. The VA orthopedist observed some loss of pinprick sensation with intact position and vibratory sense and full deep tendon reflexes. The examiner was referred to a VA neurologist and a neurology consultation was conducted in December 2007. The Veteran demonstrated dysesthesias and hyperpathia upon soft touch and pin prick testing. The neurologist diagnosed neuralgia of the proximal anterior aspect of the left leg involving the saphenous nerve and lateral cutaneous nerve of the calf with symptoms of causalgia, dysesthesia, hyperpathia, and neuropathic pain. The Veteran continued to receive treatment for the service-connected peripheral neuritis at the West Palm Beach VAMC and with a private podiatrist. Symptoms similar to those recorded by the VA orthopedist and neurologist were noted throughout the period prior to June 26, 2012; the Veteran's primary care physician diagnosed causalgia and neuralgia in August 2009 with no focal neurological deficits and essentially normal sensation. Later that month, the Veteran's private podiatrist noted a positive Tinel sign along the common peroneal line and present and bilateral pulses in the lower extremities. A year later, the private doctor noted that strength was full in the left leg, and the deep tendon reflexes were equal bilaterally with a full patella reflex and decreased achillens tendon reflex. Thus, the Veteran's treatment records document intact or slightly decreased loss of sensation in the left leg and symptoms of burning and radiating pain with occasional dysesthesia. VA examinations performed during the period prior to June 26, 2012 also document the presence of symptoms that most nearly approximate the currently assigned 20 percent evaluation under Diagnostic Code 8620. Upon VA examination in June 2008, the Veteran demonstrated paresthesias and dysesthesias of the left superficial saphenous and femoral nerves. Sensation to light touch and vibration was decreased, but position sense was normal as were reflexes. There was no muscle atrophy. The Veteran reported that he worked fulltime as an administrative specialist and lost only one week of work due to his disability as a result of medical appointments. The VA examiner diagnosed peripheral neuritis without paralysis. Furthermore, during the most recent VA examination in November 2011, the Veteran manifested symptoms of constant pain and paresthesias and/or dysesthesias that were characterized as moderate in severity. The Veteran also complained of numbness that was characterized as mild. Reflexes in the left lower extremity were full and there was no muscle atrophy. The examiner diagnosed left neuralgia of the sural, saphenous, and lateral cutaneous nerves, though physical examination of the left lower extremity nerves was normal. Therefore, the competent medical evidence establishes that the Veteran's left peripheral neuritis most nearly approximates the currently assigned 20 percent evaluation during the period prior to June 26, 2012. His disability was productive of pain, numbness, and some loss of sensation throughout the relevant claims period and the Board finds these symptoms are contemplated by moderate incomplete paralysis of the sciatic nerve under Diagnostic Code 8620. Strength and reflexes of the left lower extremity were normal and the Veteran clearly did not manifest incomplete paralysis that most nearly approximated moderately severe. The November 2011 VA examiner also specifically found that the Veteran's symptoms were mild to moderate in severity. The Board has considered the Veteran's testimony during the hearing in February 2011 and finds that his statements regarding the symptoms of his disability are consistent with the medical evidence during the applicable claims period and the current 20 percent rating. The Veteran testified that he experienced pain radiating down his left leg to his foot along with loss of feeling of the foot. He also testified that he was limited in his ability to walk and exercise, but was able to perform the activities of daily living and care for himself. The Veteran also reported incurring a stress fracture of his foot with accompanying symptoms, and service connection for this condition as a separate disability was granted in a July 2012 rating decision. The Veteran's complaints associated with the service-connected neuritis, i.e. radiating pain and loss of sensation, are contemplated by the currently assigned 20 percent evaluation for moderate incomplete paralysis under Diagnostic Code 8620. Hence, an initial rating in excess of 20 percent during the period prior to June 26, 2012 is not warranted. During the period beginning June 26, 2012, the Board finds that an increased 60 percent evaluation is warranted for the Veteran's service-connected peripheral neuritis. In June 2012, the Veteran was examined by a private podiatrist who diagnosed severe entrapment neuritis with neuropathy and nerve entrapment with persistent pain. The private physician recommended a nerve decompression or neurolysis of the affected nerve in order to relieve the Veteran's pain or a sympathetic nerve block. Although there was no indication of marked muscle atrophy, the podiatrist clearly characterized the Veteran's disability as severe. The Board therefore finds that the disability most nearly approximates severe incomplete paralysis of the sciatic nerve and a 60 percent evaluation under Diagnostic Code 8620. A maximum 80 percent rating is not warranted as the Veteran clearly does not manifest complete paralysis of the nerve with symptoms such as foot drop, no active movement of muscles below the knee, and weakened flexion. The Board has considered whether rating the Veteran's disability under any other diagnostic code pertaining to disease of the peripheral nerves is appropriate. Various physicians have identified different nerves affected by the service-connected neuritis, but the Board notes that the November 2011 VA examiner found that examination of all the Veteran's left lower extremity nerves was normal. In any event, Diagnostic Code 8620 (and by extension Diagnostic Code 8520 for paralysis of the sciatic nerve) provides for higher ratings than the other criteria used to rate diseases of the peripheral nerves. The 20 percent and 60 percent ratings associated with moderate and severe symptoms discussed above are comparable or higher than the other ratings available under the other criteria. Therefore, the Board will not change the diagnostic code used to evaluate the Veteran's service-connected disability. The Board has also considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for any higher schedular ratings at any time during the claims period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's neuritis is manifested by symptoms such as radiating pain, loss of sensation, and numbness of the left lower extremity. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Entitlement to a TDIU is also an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits and has continued to work throughout the claims period. The November 2011 VA examiner noted that the Veteran was a retired 30 year employee of IBM, but continued to work full time in community relations at the Boca West Country Club. The Veteran has not reported that he is unable to perform his duties due to the service-connected disability. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected peripheral neuritis of the left lower extremity. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran has initiated an appeal regarding the initial evaluation assigned following an award of service connection. The claim for service connection for the disability on appeal is now substantiated and the filing of a notice of disagreement (NOD) as to the June 2008 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The July 2009 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided proper VA examinations in June 2008 and November 2011 in response to his claim for an increased rating. The Board also finds that VA has complied with the remand orders of the Board. In response to the Board's September 2011 remand, the Veteran was contacted in an October 2011 letter and asked to identify all non-VA health care providers who have treated the disability on appeal. No response to this request was received, although the Veteran did submit additional records of private treatment in May 2013. A copy of the June 2008 rating decision was also associated with the claims file and the Veteran was provided a VA examination in November 2011 to determine the current severity of his peripheral neuritis. The case was then readjudicated in a June 2012 SSOC. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an initial rating in excess of 20 percent for peripheral neuritis of the left lower extremity during the period prior to June 26, 2012 is denied. Entitlement to a 60 percent rating, but not higher, for peripheral neuritis of the left lower extremity during the period beginning June 26, 2012 is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs