Citation Nr: 1332931 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-13 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, rated 10 percent disabling through September 27, 2012, and 20 percent disabling since September 28, 2012. 2. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity, rated 10 percent disabling through September 27, 2012, and 20 percent disabling since September 28, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision the RO denied entitlement to ratings in excess of 10 percent for peripheral neuropathy of the right and left lower extremities. By an October 2012 decision, a Decision Review Officer (DRO) granted increased (20 percent) ratings for peripheral neuropathy of each lower extremity, effective September 28, 2012. The Veteran had been scheduled for a Board hearing via videoconference before a Veterans Law Judge. The Veteran subsequently withdrew his hearing request in April 2013. See 38 C.F.R. § 20.704(e) (2012). FINDINGS OF FACT 1. For the period through September 27, 2012, the Veteran's peripheral neuropathy of the lower extremities was characterized by moderate incomplete paralysis of the sciatic nerve. 2. For the period from September 28, 2012, the Veteran's peripheral neuropathy of the lower extremities is characterized by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for peripheral neuropathy for each lower extremity for the period through September 27, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a 40 percent rating for peripheral neuropathy for each lower extremity since September 28, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a pre-adjudication letter dated in June 2009, RO notified the Veteran of the evidence needed to substantiate his claim for increased ratings for neuropathy of the lower extremities. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). He was notified of the disability rating and effective date elements of his claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held in Vazquez-Flores v. Peake that 38 U.S.C.A § 5103(a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Additionally, a claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), 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. Id. Furthermore, the Court directed that the notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation -- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. The June 2009 letter told the Veteran that evidence of worsening could substantiate the increased rating claim. He was notified in the June 2009 letter that medical or lay evidence could be submitted to substantiate his increased rating claims and was provided with specific examples. The letters stated that the Veteran could submit letters from individuals who could describe the manner in which his disability had worsened. The June 2009 letter also explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign a rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his 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 his 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 obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified relevant post-service VA treatment records and private medical records. In addition, he was afforded multiple VA examinations to assess the severity of his service-connected lower extremity neuropathy. The findings are sufficient to apply the rating criteria. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation will be assigned. 38 C.F.R. § 4.7. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's neuropathy of the lower extremities has been rated under 38 C.F.R. § 4.124a, DC 8520, as impairment of the sciatic nerve. Under DC 8520, a 10 percent rating is for application when there is mild incomplete paralysis of the sciatic nerve. A 20 percent rating is for application when there is moderate incomplete paralysis. A 40 percent rating is for application when there is moderately severe incomplete paralysis. A 60 percent rating is for application when there is severe incomplete paralysis, with marked muscular atrophy. Finally, an 80 percent rating is for application when there is complete paralysis of the sciatic nerve as evidenced by the foot dangling and dropping, no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a , DC 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As to the period prior to September 28, 2012, the evidence of record shows that the Veteran likely experienced moderate incomplete paralysis of the sciatic nerve. In July 2009, the Veteran's spouse submitted a statement detailing the symptoms of the Veteran's disability. The Veteran's spouse detailed the Veteran's difficulty walking. Specifically, she asserted that even where a minimal amount of walking is involved, the Veteran would frequently stop and rest before beginning to walk again. See July 2009 Statement of Veteran's Spouse. The Veteran himself reported his difficulty walking at both his July 2009 and June 2010 VA examinations. Indeed, at his June 2010 VA examination, the Veteran specified that he was able to walk only about 150 feet before his legs give out. He also stated that that he is only able to resume walking after taking a few minutes to rest. At his October 2010 hearing, the Veteran was using a cane to walk. The Veteran testified that, at that time, he was only able to stand for about three to four minutes before he needed to sit down. See October 2010 DRO Hearing Transcript. The Board finds the statements regarding the Veteran's difficulty with walking competent as he and his spouse can both observe such a problem. Moreover, the consistency of those statements over the claim period causes the Board to find them credible. The Veteran also reported reduced feeling in his feet. The Veteran recounted an incident where he stepped on an ant bed. See September 2009 Notice of Disagreement. The Veteran stated that despite stepping on the ant bed and noticing that his feet were covered with ants, he was unable to feel the biting of the ants. Id. The Veteran also reported his inability to feel ticking on his feet. Id. He further asserted, at his hearing before a DRO, that he is unable to feel blisters that develop on his feet. See October 2010 DRO Hearing Transcript. The Veteran also reported pain in his feet. Specifically, the Veteran asserted that the pain in his feet was so bad that he was unable to press the accelerator on his lawnmower. September 2009 Notice of Disagreement. Moreover, the Veteran described the pain in his feet as being so bad that he sometimes sleeps with his shoes on to provide pain relief. May 2011 Statement of Veteran. The Veteran is competent to report all of these events as they are within the realm of his perception. Moreover, the Board finds no reason to discount his credibility. During the period before September 2012, the Veteran submitted to VA examinations in July 2009 and May 2010. As a result of both of those examinations, the examiners concluded that the Veteran's peripheral neuropathy resulted in mild incomplete paralysis of the sciatic nerve. See July 2009 VA Examination Report; May 2010 VA Examination Report. At both examinations, the examiners considered that motor strength was 5/5 with normal tone, bulk, and coordination. Id. Also, both examinations included a finding that temperature sense was decreased in a stocking distribution. Id. Despite the conclusions of both the July 2009 and May 2010 examiners, the Board finds that the Veteran's disability picture more closely approximated the criteria for a 20 percent rating during the claim period before September 28, 2012. This is because the Veteran and his spouse credibly reported the Veteran's difficulty walking even short distances. Moreover, the Veteran also credibly recounted the incident where he was unable to feel ants all over his feet and he further testified that he is unable to feel blisters on his feet. Finally, the Veteran also reported the pain in his feet being so bad that he sometimes wore his shoes to bed for pain relief. In the Board's opinion, the symptomatology experienced by the Veteran during that period more closely approximates the criteria for a 20 percent rating, in that the Veteran was experiencing moderate incomplete paralysis of the sciatic nerve. See C.F.R. § 4.124a, DC 8520. As to the period since September 28, 2012, the Board finds that the Veteran is entitled to a rating of 40 percent as the Veteran's disability is characterized by moderately severe incomplete paralysis of the sciatic nerve. The Veteran submitted to a VA examination in September 2012. As a result, the examiner concluded that the Veteran's disability resulted in moderate incomplete paralysis in both lower extremities. See September 2012 VA Examination Report. The examiner performed a light touch/monofilament test, which revealed decreased feeling in the Veteran's feet and toes but normal feeling in his ankles and lower legs. Id. Further, mild numbness, mild paresthesia and/or mild dysesthesia was noted in each lower extremity. Id. The examination report also shows that the Veteran experiences decreased cold sensation in his lower extremities. Id. Motor strength was 5/5 with normal tone, bulk, dexterity and coordination. Id. Nonetheless, the Veteran's disability picture more closely approximated moderately severe incomplete paralysis of the sciatic nerve as of September 28, 2012. As of that date, on which the Veteran submitted to his examination, the Veteran was now using a wheelchair. Id. This is opposed to his use of only a cane at his May 2010 VA examination and his use of only a cane at his October 2010 hearing before a DRO. Moreover, at his September 2012 VA examination, the Veteran complained that he was only able to walk a few steps before his legs would give out. September 2010 VA Examination Report. This is in marked contrast to the Veteran's statement at his May 2010 VA examination, where he reported that he was able to walk 150 feet before his legs would give out. See May 2010 VA Examination Report. At his September 2012 VA Examination, the Veteran also asserted that he feels constant pain in his calves and numbness up to his knees. The Veteran is competent to report observable symptomatology. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Further, the Board does not question the credibility of the Veteran's report regarding his symptoms, given the fact that those statements are not in conflict with any other evidence of record. Despite the examiner's opinion that the Veteran's peripheral neuropathy resulted in moderate incomplete paralysis of the sciatic nerve, the Board finds that the Veteran's disability picture more closely approximates moderately severe incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a , DC 8520. This is because the Veteran's peripheral neuropathy has caused the Veteran to use a wheelchair for mobility and rendered his lower extremities numb and painful to the point where the Veteran is only able to take a few steps before his legs give out. As such, the Veteran is entitled to a 40 percent rating for his disability since September 28, 2012. (Whether the use of the wheelchair is required solely because of the neuropathy was not addressed by the examiner other than to say that gait disturbance was unlikely due to diabetes, and while it seems unusual that the Veteran would have such good motor strength and nevertheless use a wheelchair, because the examiner did not provide further explanation, the Board gives the Veteran the benefit of the doubt.) The Board also finds that the Veteran is not entitled to a higher rating at any point during the claim period. As a result of his examinations, the Veteran was found to have incomplete, not complete, sciatic nerve paralysis in both his right and left lower extremities. See September 2012 VA Examination Report. There is no other evidence of record that rebuts this finding. Further, there is no other evidence that the Veteran's left or right foot dangles or drops. See C.F.R. § 4.124a, DC 8520. Nor is there evidence of no active movement possible of muscles below the Veteran's knees or flexion of his knees is weakened or lost. See id. As such, at no point during the claim period is the Veteran entitled to a rating of 80 percent for his right or left lower extremity peripheral neuropathy. In addition, the Veteran is also not entitled to a rating of 60 percent at any point during the claim period. As discussed above, a 60 percent rating requires, in addition to severe incomplete paralysis of the sciatic nerve, marked muscular atrophy. See C.F.R. § 4.124a, DC 8520. Here, at his September 2012 VA examination, the Veteran's examiner considered whether the Veteran had muscle atrophy and expressly determined that the Veteran did not have muscle atrophy. See September 2012 VA Examination Report. There is no other evidence of record suggesting that the Veteran does in fact have muscle atrophy. As such, under the applicable criteria for a 60 percent rating for his right and left lower extremity peripheral neuropathy, the Veteran is not entitled to a 60 percent rating at any point during the claim period for his disabilities. The record does not establish that the rating criteria are inadequate for rating the Veteran's peripheral neuropathy of the lower extremities such that an extraschedular rating is warranted. The Veteran's disability is manifested by incomplete paralysis of the sciatic nerve. The effects of the Veteran's disability have been fully contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to separate 20 percent ratings for peripheral neuropathy of the lower extremities for the period prior to September 28, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to separate 40 percent ratings for peripheral neuropathy of the lower extremities from September 28, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs