Citation Nr: 1332559 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-00 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for peripheral neuropathy of the right leg prior to February 15, 2012, and in excess of 20 percent therefrom. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1976 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that continued a 10 percent disability rating for service-connected peripheral neuropathy of the right leg. During the course of this appeal, the RO reviewed the Veteran's appeal for an increased rating and assigned a 20 percent disability rating, effective February, 15, 2012, as part of a November 2012 rating decision. In June 2013, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been incorporated into the record. The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT For the entire increased rating period, peripheral neuropathy of the right leg has been manifested by moderately severe incomplete paralysis of the right sciatic nerve. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a 40 percent rating, but no more, for peripheral neuropathy of the right leg have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In a May 2009 letter, VA informed the Veteran of the evidence necessary to substantiate his claim for an increased rating, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The May 2009 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess, 19 Vet. App. 473. Service treatment records, VA treatment records, private treatment records, lay statements, and VA examination records have been associated with the claims file. The Veteran was afforded VA examinations related to service-connected peripheral neuropathy of the right leg in June 2009, March 2011, and February 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the VA examinations obtained in this case are adequate as each provides a sufficiently detailed description of the Veteran's disability, including the results of physical examinations and consideration of prior medical history, sufficient to inform the Board's evaluation of the disability. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4). During the June 2013 Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony. In addition, the undersigned left the record open for 90 days after the hearing to enable the Veteran to submit additional records in support of his claim. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. B. Law and Analysis Disability Evaluation Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims (Court or CAVC) 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. 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. The Board has considered whether a staged rating is warranted; however, symptoms related to the Veteran's peripheral neuropathy have not changed in severity over the course of the appeal to warrant a staged rating. Pyramiding, the evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses, are to be avoided. Id. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so) In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson, 7 Vet. App. at 39; Gilbert, 1 Vet. App. at 57. The Veteran's service-connected peripheral neuropathy of the right leg is rated at 10 percent prior to February 15, 2012, and rated at 20 percent from February 15, 2012, under DC 8599-8520. This disability is not specifically listed in the rating schedule; therefore it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. Diagnostic codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. See 38 C.F.R. §§ 4.123, 4.124. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for 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. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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 wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Increased Rating Analysis The Veteran's service-connected peripheral neuropathy of the right leg is currently rated at 20 percent. While this rating reflects an increase from the 10 percent rating that existed at the start of the appeal period, the Veteran has maintained that these ratings are inadequate measures of his disability. The Board finds that, for the entire rating period, peripheral neuropathy in the Veteran's right leg has been manifested by moderately severe incomplete paralysis of the sciatic nerve. In June 2009, the Veteran underwent a VA peripheral nerve examination. The Veteran reported a history of severe pain flare-ups - described as "shooting pain" - in his right knee lasting several minutes. A physical evaluation revealed no muscle wasting or atrophy in the right knee. Similarly, there was no evidence of a lesion, loss of fine motor control, or ulceration. The Veteran exhibited diminished reflexes during right side right-side patellar and Achilles reflex testing. Additionally, pinprick testing showed decreased sensation distally in the mid right thigh. The examiner stated that Veteran's knee condition had a mild to moderate effect of the Veteran's knee condition on his usual occupational and daily activities. In August 2009, the Veteran described how pain and limitation of motion in his right leg "radiates all the way" from his foot to his hip. See August 2009 NOD. In December 2009, he further explained how "persistent and chronic tingling, numbness, and weakness" in his right leg caused problems walking and standing. See December 2009 VA Form 9. In a November 2010 letter, D. R., the Veteran's wife, discussed how his leg condition has created problems walking, sleeping and standing. She described his constant pain and how his leg numbness created walking difficulty. She also noted an impaired ability to lift things and bend at the waist. In February 2011, the Veteran was examined by Dr. A. E. following complaints of pain in his legs and knees. The Veteran rated pain severity as a 7 on a 10-point scale and reported that everyday-use worsens his condition. The doctor noted an antalgic right gait and use of a single point cane. He observed no deformity, tenderness, crepitus, heat, muscle atrophy, or abnormal movements. He explained that the Veteran was unable to hop on the right leg or squat fully. The impression was degenerative joint disease in the right knee, a disability for which the Veteran is service-connected. In March 2011, the Veteran underwent a second VA peripheral nerve examination. The Veteran reported a history of numbness, tingling, and pain in his right leg. He said that pain and tingling increased when trying to sleep. Sensory examination showed decreased sense of vibration, pinprick, position, and light touch in the right leg. The examiner said that these abnormalities specifically affected the sciatic nerve. An abnormal gait was noted and described as "antalgic but stable balance wise." There was no evidence of right leg imbalance, tremor, fasciculation, or effects on joint functioning. During the examination, the Veteran reported that he was currently unemployed as a warehouseman for 1 to 2 years because of right leg and back pain. On VA peripheral nerve examination In February 2012, the examiner attributed symptoms including moderate intermittent pain, mild paresthesisas and/or dysthesias, and mild numbness - each of the right lower extremity - to a peripheral nerve condition. Muscle strength was normal for right knee extension and right ankle plantar flexion; however, right ankle dorsiflexion showed active movement against some resistance. There was no evidence of muscle atrophy. Sensory examination showed decreased sensation to light touching in the right foot/toes; however results were normal for the right thigh/knee and lower leg/ankle. The Veteran's gait was abnormal on account of more lifting in the right knee. No trophic changes were noted. A severity evaluation of the lower extremity nerves indicated moderate incomplete paralysis of the right external popliteal (common peroneal) and right anterior tibial (deep peroneal) nerves, and mild incomplete paralysis of the right musculocutaneous (superficial peroneal) nerve. Although the Veteran's condition was observed as having a "normal" effect on the sciatic nerve, the examiner also indicated moderately severe incomplete paralysis. In the context of the entire record, and affording the benefit of the doubt to the Veteran, the Board finds that the "normal" recording was in error and that the examiner found moderately severe incomplete paralysis of the right sciatic nerve. See 38 C.F.R. § 3.102; Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The examiner also recorded that the Veteran uses a cane on a constant basis. The examiner described that the peripheral nerve condition has affected the Veteran's ability to work, specifically his inability to walk or stand for prolonged periods of time. During a Board hearing with the undersigned in June 2013, the Veteran described functional limitations he has faced because of peripheral neuropathy of the right leg. He explained difficulty with sleeping, walking, and moving his toes. He said that he fell approximately 20 times over the previous year despite the use of a cane and brace to assist with balance. The Board finds that, for the entire rating period, neurological manifestations due to peripheral neuropathy of the right leg approximate a rating based on moderately severe incomplete paralysis of the sciatic nerve under Diagnostic Code 8520. At no point does the medical evidence show muscular atrophy or complete paralysis of the sciatic nerve. However, moderately severe incomplete paralysis of the sciatic nerve was shown during the February 2012 VA examination. This result is consistent with findings from the March 2011 VA examination, which did not present information regarding paralysis levels but did include results of sensory testing that showed several deficiencies specifically affecting the sciatic nerve. Decreased sensation along the mid-thigh was also shown during the June 2009 VA examination. The Veteran has consistently complained of severe right leg pain - as well as numbness and weakness - and required the use of a cane for balance and movement for the entire rating period. Additionally, the Veteran has consistently described - and examiners have acknowledged - functional and occupational impairment associated with right leg neuropathy during VA examinations in June 2009, March 2011, and February 2012. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the severity level of the Veteran's peripheral neuropathy of the right leg has been constant for the entire rating period. 38 C.F.R. § 4.3. The next higher rating would require severe incomplete paralysis with marked muscular atrophy. The Board finds that a rating in excess of 40 percent is not warranted as the weight of the lay and medical evidence demonstrates at most moderately severe incomplete paralysis and neither severe incomplete paralysis is demonstrated in the clinical findings as discussed above or by the lay evidence. As such, a rating in excess of 40 percent for the Veteran's service-connected right leg peripheral neuropathy is not warranted. In reaching this conclusion, the Board has considered evidence of other neurological manifestations of peripheral neuropathy of the right leg. Specifically, the Board weighed evidence from the February 2012 VA examination that showed moderate incomplete paralysis of the right external popliteal (common peroneal) and right anterior tibial (deep peroneal) nerves, and mild incomplete paralysis of the right musculocutaneous (superficial peroneal) nerve. Diagnostic Codes 8521, 8522 and 8523 assign disability ratings for each manifestation. 38 C.F.R. § 4.124a. However, the Board finds that symptomatology of these conditions and the moderately severe incomplete paralysis of the sciatic nerve have duplicative and overlapping symptomatology such that separate and distinct ratings for each of these manifestations are not appropriate in this case. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's peripheral neuropathy of the right leg is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Code 8520, specifically provides for disability ratings based on the severity of neurological impairment (neuritis, neuralgia, or paralysis) in the peripheral nerves. In this case, considering the lay and medical evidence, the Veteran's peripheral neuropathy has been manifested by moderately severe incomplete paralysis of the sciatic nerve, and his sensory and reflex symptoms are not shown to be severe in degree. The Veteran's neurological symptoms are contemplated by the schedular rating criteria. Additionally, the Board has considered the Veteran's functional limitations noted during the June 2013 Board hearing and in other lay testimony. The Veteran expressed difficulty walking, sleeping, and moving his toes. These statements reflect testimony provided by D. R., the Veteran's wife, in a November 2011 letter which highlighted his difficulties with walking. In February 2011, Dr. A. E. noted that the Veteran was unable to hop on the right leg or squat fully. The Board finds that these statements are credible, and the Veteran's neuropathic pain, numbness, tingling, and associated functional limitations have been considered in evaluating his disability. However, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, and in the absence of exceptional factors associated with peripheral neuropathy of the right leg, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Lastly, an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009), has been considered. In this regard, the Board acknowledges that the issue of TDIU has been explicitly raised by the Veteran and was adjudicated by the RO as part of the November 2012 rating decision. Given the contemporaneous claim and subsequent adjudication of the TDIU issue, which has not been appealed, the Board finds that the issue has been expressly raised and any inferred TDIU claim is inapplicable in this case. ORDER For the entire rating period, a 40 percent rating, but no more, is granted for peripheral neuropathy of the right leg, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs