Citation Nr: 1334084 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-31 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus (DM), type II. 2. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from September 1968 to September 1972. This matter came to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in August 2011 for further development. A review of the record shows that the RO has complied with all remand instructions by asking the Veteran to identify health care providers from whom he received treatment, affording the Veteran VA examinations and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a personal hearing before the RO in September 2006. A transcript is of record. FINDINGS OF FACT 1. The Veteran's service-connected diabetes mellitus, type II is manifested by use of oral hypoglycemic agent and restricted diet; it is not manifested by regulation of activities or episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or twice a month/weekly visits to a diabetic care provider. 2. The Veteran's service-connected peripheral neuropathy of the left lower extremity is manifested by moderate incomplete paralysis. 3. The Veteran's service-connected peripheral neuropathy of the right lower extremity is manifested by mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected diabetes mellitus (DM), type II have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2013). 2. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 7913-8521 (2013). 3. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 7913-8521 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2005. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with additional notice in March 2006, December 2007 and September 2011 subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the March 2006, December 2007 and September 2011 notice were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claims were subsequently readjudicated in a July 2007 statement of the case (following the provision of notice in March 2006) and August 2012 supplemental statement of the case, (following the provision of notice in March 2006, December 2007 and September 2011). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained VA and private treatment records, reviewed the Veteran's Virtual VA and VBMS files, assisted the Veteran in obtaining evidence, afforded the Veteran a VA examination in December 2011, and afforded the Veteran the opportunity to give testimony before an RO in September 2006. On an August 2012 statement, the Veteran's representative noted that they had no additional evidence to submit and requested the case be forwarded immediately to the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. The Board has noted that the representative has asserted that the examination was not sufficient because it was not performed by a diabetes specialist or a neurologist. The Board finds, however, that the nurse practitioner who conducted the examination was sufficiently qualified to elicit the information necessary for rating purposes. The Federal Circuit has held that "any challenge 'to the expertise of a VA expert' must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion." Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). The Court explained that requiring specific reasons to challenge a VA examiner's expertise is necessary because "[u]nless there is such particularization, the trier of facts is unable to evaluate and determine the validity of the challenge to the expert's qualifications." Id. Here, merely alleging that a nurse practitioner may not be qualified to give an opinion does not amount to specific reasons to challenge the VA examiner's qualifications. VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Board may assume a VA medical examiner is competent. Id.; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). The Veteran's representative has not provided a persuasive argument that the VA examination and opinion from a nurse practitioner were inaccurate or flawed. No probative evidence suggests that he was not competent to perform the required examination. There is no reason to deem the examination inadequate, and the VA examination report reveals that the examiner interviewed the Veteran and discussed the Veteran's reported history and treatment. The VA nurse practitioner's report was thorough, supported by an explanation, based on a review of the claims folder, and supported by the evidence of record. The Board finds this opinion is entitled to great probative weight. To the extent that the examination did not comply with the Board's prior remand which indicated that the examination should be conducted by an appropriate "expert", the Board finds that there has been no prejudice to the Veteran. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Increased Ratings The present appeal involves the Veteran's claims that the severity of his service-connected diabetes mellitus, type II and peripheral neuropathy of the left and right lower extremities warrant higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For the increased rating claim for DM type II, in order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. For the increased rating for peripheral neuropathy, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. I. DM Type II The Veteran's service-connected diabetes mellitus, type II has been rated by the RO under the provisions of Diagnostic Code 7913. Under this regulatory provision, a rating of 20 percent is warranted for DM requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for DM requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for DM requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for DM requiring more than one daily injection of insulin, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. Note (1): Evaluate compensable complication of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Note (2): When diabetes mellitus has been conclusively diagnosed, do not require a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.7, which allows for a higher rating if the disability picture more nearly approximates the criteria for that rating, when assessing whether a higher rating is warranted even if the diagnostic criteria comprising a disability rating are joined by the conjunctive "and" unless such criteria are "successive." "Successive" rating criteria (as is contemplated by Diagnostic Code 7913) is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). A December 2004 VA treatment record shows the Veteran's reports of elevated blood sugars ranging from 150 to 270. He was being followed by an outside primary care physician (Dr. M) every three to four months. He complained of numbness and tingling in his lower extremities. It was noted that he worked for the Department of Transportation (DOT) as a truck driver. His diet was regular. He did not exercise. Review of his systems showed difficulty in coordination, tremors or focal weakness and numbness of the feet. A May 2005 VA examination report shows blood sugars ranging from 69 to 200. He reported daily episodes of hyperglycemia manifested by increased thirst and urination. He had hypoglycemic reactions every 2 days with shakiness, lightheadedness. He denied any hospitalization for diabetes. He is trying to follow a diet and lost 10 pounds. As far as restriction of activities, he is unable to do strenuous activities. He took three days to mow his lawn due to hypoglycemic reactions. It was noted that his treatment is the oral hypoglycemic (Metformin) and is seen by his diabetic care provider every few months. It was further noted that he is positive for loss of strength since developing diabetes. The examiner diagnosed DM type 2 noninsulin dependent. In a statement received in May 2005, the Veteran stated that he was watching his diet and was exercising. A November 2005 VA treatment record shows an increase in Glipizde, Metformin, Simvastin, and Buporpion. A December 2005 VA treatment records shows the Veteran's reports of blood sugar level range of between 70 and 160. At the time of the visit, his blood sugar was 99. It was noted that he was still taking Glipizide and Metformin. At a September 2006 RO hearing, the Veteran testified that he could not operate the asphalt roller since it worsened his neuropathy. He confirmed that the roller was the only equipment that he was prohibited from using. He continued to work full time. A December 2006 VA treatment record shows that the Veteran denied symptoms related to hyperlipidemia and other symptoms related to diabetes. He follows with Dr. W, his primary care physician. It was noted that he had been a noninsulin dependent diabetic for six years. He brought a log book that showed blood sugars ranging between 67 and 130. He took gabpentin for neuropathy. He requested Accu-Chek strips so he could take them twice daily, and also requested renewal of his medication. He declined a nutrition consultation and was advised that this blood sugars need to be under better control and that he needs to have his medication adjusted. A December 2011 VA examination shows in the medical history section that treatment consisted of orally hypoglycemic agents. The examiner did not mark the appropriate boxes to indicate that his DM was managed by restricted diet, insulin 1 injection per day/more than 1 per day. It was noted that there was no regulation of activities as part of medical management. He was walking 1/2 miles per day. It was noted that he visited his diabetic care provider for episodes of ketacidosis or hypoglycemic reactions less than two times per month, and no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past year. The examiner marked the appropriate box to deny progressive unintentional weight loss attributable to DM, and progress loss of strength attributable to DM. Complications included diabetic peripheral neuropathy. It was noted that his DM does not impact his ability to work. It was noted that he retired from DOT in June 2011 due to time and age. It was noted that his diabetes did not prevent him from working. He had difficulty operating heavy machinery due to the numbness in his legs, but he was able to perform his job. He was "trying" to follow a restricted diet, but found it difficult since retiring. The examiner noted that the Veteran's weight was the same since 2005. Based on the foregoing, a rating for diabetes in excess of 20 percent is not warranted. Here, there was no evidence of regulation of activities to warrant the next higher rating of 40 percent. The Veteran was exercising walking a half mile daily. The December 2011 VA examiner made clear that there was no regulation of activities. Further, while his representative notes (in a statement received in September 2011) that the Veteran was not able to operate a specific equipment when he was employed (mainly due to the peripheral neuropathy), the December 2011 VA examiner noted that the DM did not impact his ability to work. The Veteran retired due to length of service and due to his age. Additionally, the Veteran's representative asserted that the Veteran had insulin dependent diabetes. The evidence, however, reflects that he used oral medications not insulin. Moreover, the Board notes that this alone would not allow for the grant of the next higher rating. Again, the criteria under this Diagnostic Code are successive. Thus, in order for a grant of a 40 percent rating, not only does the Veteran's treatment require insulin and a regulated diet, but there has to be a regulations of activities as well. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Also, while the Veteran reported hypoglycemic reactions, he was never hospitalized for his diabetic symptoms. Additionally, the most current VA examination shows that visits to his diabetic care provider were less than twice a month. Treatment consisted of medications and increasing dosage, monitoring his blood sugars, seeking a dietician and undergoing testing. As for diabetic complications (other than peripheral neuropathy of the lower extremities that is addressed below), they were denied by the Board in August 2011. The preponderance of the evidence is against the claim for evaluation in excess of 20 percent for DM type II. Staged ratings are not of application since the Veteran's DM type II is adequately contemplated by the 20 percent rating. Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. II. Peripheral Neuropathy The Veteran's service-connected peripheral neuropathy of the left and right lower extremities have been rated by the RO under the provisions of Diagnostic Code 8521 for paralysis of external popliteal nerve (common peroneal). Under this regulatory provision, a rating of 10 percent is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for incomplete severe paralysis. A maximum rating of 40 percent is warranted for complete paralysis; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakend; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. A January 2005 treatment record from Dr. T.K.of Heritage Valley Health System shows that the Veteran was an equipment operator who was referred for electodiagnostic study of the lower extremities to rule out peripheral neuropathy. On physical examination, the lower extremity showed +1 (decreased) deep tendon reflexes. Sensation appeared essentially preserved to pinprick, light touch and vibration sense. There was no muscle wasting or isolated weakness. Sensation was preserved bilaterally, including both femoral distribution, and there was no muscle wasting in both quadriceps muscles at the time of examination. Nerve conduction studies showed no sensory response that was obtainable in the right sural nerve. Nerve conduction velocities were normal in both peroneal and in the right tibia nerve. There were diminished amplitude evoked motor responses in both peroneals. Electromyography (EMG) showed all the muscles with normal insertional activity and silence at rest. At slight effort, there was normal amplitude, duration and number of motor unit potentials. Dr. T.K noted mild sensory motor peripheral neuropathic changes in the lower extremities. He noted that the abnormalities appeared mild and nonspecific. A March 2005 letter (addressed to the Veteran's employer) from Dr. J.S.M., Jr. of Heritage Valley Health System noted that the Veteran's peripheral neuropathy made it "very hard for him to operate a piece of equipment called a roller. Please take this into account when assigning him work duties." A May 2005 VA examination report shows tingling and numbness that would start with the left leg and travel to his feet bilaterally. This would occur in the right leg as well. He fell previously due to numbness in his foot while rising to walk. He reported that he was unable to feel his feet. He did experience painfulness at times with neuropathy, which happed three times per week. It would gradually subside. The examiner noted that palpation did not reveal any thigh/calf tenderness. Pulses were palpable at femoral, political and ankle. Both feet were normal. Movement of the knee and ankle joints was also normal. The examiner noted diabetic neuropathy in the bilateral lower extremities. He noted that an EMG report stated mild sensory motor peripheral neuropathic changes to the lower extremities. In a statement received in May 2005, the Veteran stated that exercising and dieting did not help his peripheral neuropathy of the lower extremities. He was prevented from operating "one particular piece of equipment at my job... I can no longer operate the Roller." A December 2005 VA treatment record shows that a 10 gm monofilament exam showed that pedal pulses and foot inspection were normal. A December 2005 VA treatment report shows reports of some anesthesias and paresthesias in the left leg. Upon physical examination, it was noted that with shoes and socks off, his 10-gram (gm) monofilament examination was normal bilaterally, pedal pulses were present bilaterally and foot inspection was normal. It was noted that the Veteran was taking Gabapentin. The Veteran stated he would benefit from a podiatry consolation. An order was placed. He was advised to have EMG and Nerve Condition study results with his primary care provider. A December 2005 VA treatment record shows that the Veteran reported chronic ankle sprain. He stated that his ankle gives out for no reason. It was noted that "Some of this probably is due to his neuropathy." Upon physical examination, it was noted that the Veteran has lost protective sensation. He had cold toes, periodic numbness and tingling in his feet, especially in his left. The sensation travelled up his thigh. Pulses are palpable. The assessment and plans showed that an articulated AFO-type brace was ordered to try to prevent ankle sprain. At a September 2006 RO hearing, the Veteran testified that the use of a brace keeps his left ankle from giving out. He reported numbness from the hip downward. He denied numbness in the right leg. He testified that he could not operate the asphalt roller since it worsened his neuropathy, and that the roller was the only equipment that he was prohibited from using. He continued to work full time. A December 2006 letter from Dr. G.E.W. of Heritage Valley Health System shows that the Veteran had numbness in his left foot and that he sometimes had painful episodes of foot pain. Wearing a brace improved function. Without it, his ankle weakened and caused him to fall. A December 2006 VA treatment record shows that gabapentin helped with his symptoms. June 2008 and December 2008 VA treatment records altogether show decreased sensory response bilaterally monofilament testing. Protective sensation was also diminished bilaterally. It was more pronounced in the left than in the right. It was noted that he had balance problems due to numbness and weakness in the left leg. He was using an AFO brace that helped with ambulation and generated good results. A June 2009 VA treatment record shows use of an AFO brace in the left with reports of weakness. It was noted that the ankle ligaments may be weak due to lack of use of brace. Range of motion was within normal limits and was free from crepitus. The assessment was DM II with peripheral neuropathy, circulation was intact; replacement of diabetic shoes was requested; and subjective left ankle weakness. A June 2009 VA treatment record shows neuropathy that was more pronounced in the left foot. He complained of ankle weakness in the left, which he noticed when he did not wear a brace. He believed his ankle was going to "give." He requested diabetic shoes. An April 2010 EMG report from Heritage Valley Health System shows complaints of slowly progressing left greater than the right lower extremity paresthesais, and cramping that was usually aggravated with standing or ambulation. Dr. T.K. noted that the Veteran did not appear to have classic paresthesias or dysesthesias localized exclusively to his toes and feet awakening him at night. Upon physical examination, the lower extremity showed +1 deep tendon reflexes, sensation appeared essentially preserved to pinprick, light touch and vibration sense. Dr. T.K. noted no isolated weakness or muscle wasting that was visible. Pedal pulses were palpable. Nerve conduction study showed no sensory response was obtainable in the left sural nerve. Motor conduction velocities were normal in both peroneal and in the left tibia nerves. There were diminished amplitude evoked motor responses in the right peroneal nerve. EMG showed that all the muscle had normal insertional activity and silence at rest. At slight effort, increased proportion of polyphasics was seen in both lower extremities, most prominently in bilateral L4-5 myotomes. At maximal effort there was reduced interference. In summary, Dr. T.K. noted abnormal study. He noted diffuse chronic partial denervation changes in the lower extremities bilaterally. In addition, he noted mild sensory motor peripheral polyneuropathic changes. An October 2009 VA treatment record shows full range of motion of all extremities and that the Veteran's neuropathy was stable on Neurontin. March 2009 and September 2010 VA treatment records show that his neuropathy was stable on Neurontin. A June 2011 VA treatment record shows no new complaints of his feet. It was noted that he used an AFO brace for drop foot on the left side. Upon physical examination, it was noted that he had decreased sensory response bilaterally to monofilament testing. Prospective sensation was diminished in both feet, more in the left than in the right. He used an AFO on the left leg, which helped with ambulation. The assessment included DM type II with peripheral neuropathy, circulation was intact. When the Veteran was afforded a VA examination in December 2011, it was noted that neurologic symptoms included tingling, burning and numbness, usually starting with the left leg, will travel down to the feet bilaterally and will occur in the right leg as well. He reported that it occurred daily and was almost constant. He reported falling previously due to numbness in the right foot when getting up to walk and being unable to feel. Burning pain occurred daily, but he did not feel it at night. He wore an Arizona brace on the left foot due to foot drop since he was last seen in 2005. Symptoms included moderate constant, intermittent pain; moderate paresthesias and/or dysesthesias; and moderate numbness. Strength was full for right knee extension, flexion and ankle plantar flexion and dorsiflexion. Left knee extension and flexion was full; however, ankle plantar flexion and ankle dorsiflexion was 4/5. Deep tendon reflexes were 2+ (normal) in the knees and ankles bilaterally. Light touch in the knee/thigh and ankle/lower leg was normal. However, in the foot/toes it was decreased. Position sense was decreased. The examiner noted mild incomplete paralysis in the right lower extremity and moderate incomplete paralysis in the left lower extremity. Femoral nerve was normal bilaterally. For the left lower extremities, a rating in excess of 20 percent is not warranted. There were no indications that he had severe incomplete paralysis of the lower extremity to warrant a 30 percent rating. While there are reports of use of the brace due to foot drop, there is no evidence of complete paralysis to allow for a 40 percent rating. Here, medical evaluations showed no more than moderate symptoms. Symptoms were mainly numbness and the Board notes that he was able to feel pain. He was still able to walk. Range of motion of the lower extremities was normal. Foot inspections were normal. Neuropathy was stable with medication. The most current VA examination showed that while light touch in the foot/toes was decreased, it was not absent. Likewise, while position sense was decreased, it was not absent. At the most recent examination, deep tendon reflexes were normal. Additionally, the Veteran reported no more than moderate symptoms of pain, paresthesias/dysesthesias and numbness. Left knee extension and flexion were full. Ankle flexion and dorsiflexion were no worse than 4/5. After interviewing and examining the Veteran, the VA examiner diagnosed moderate incomplete paralysis of the left lower extremity. For the right foot, a rating in excess of 10 percent is not warranted. There are no indications that he had moderate incomplete paralysis as he had in his left foot. As the Veteran had stated, the left foot was worse than the right. The right foot did not require the use of a brace. And the Veteran did not report that it gave out. While he could not engage in strenuous activities, he was still able to walk. There were decreased deep tendon reflexes in the past. However, the most current VA examination shows normal deep tendon reflex in the knees. Inspection of the feet was normal. An EMG reports showed mild secondary motor peripheral neuropathic changes in the lower extremities. The worst of his symptoms in his right foot were numbness and pain. Range of motion was within normal limits. Neuropathy was stable with the use of medication. There was decreased sensory response bilaterally to monofilament testing. Circulation was intact. Light touch to the lower extremities was normal, but in the foot/toes it was decreased but not absent. Position sense was also decreased, but not absent as well. The December 2011 VA examiner found the Veteran had mild incomplete paralysis in the right lower extremities despite reports of moderate constant, intermittent pain, moderate paresthesias and/or dysesthesias and numbness. Overall, the Veteran has been properly assigned a 10 percent rating for peripheral neuropathy of the right lower extremity. A rating in excess of 10 percent is not warranted. The Board has considered symptoms reported by the Veteran-pain, numbness, inability to use an asphalt roller and use of a brace-as he is competent to do. However, even when considering the Veteran's reports, the diagnoses for the left lower extremity and right lower extremity have been deemed no more than moderate and mild, respectively, by a medical professional. The Board notes that there are no medical opinions to the contrary and the Board assigns more probative weight to the medical assessment of record as the Veteran is not competent to render a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The preponderance of the evidence is against the claim for evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity and 10 percent for peripheral neuropathy of the right lower extremity. Staged ratings are not of application since the Veteran's peripheral neuropathy of the left and right lower extremities are adequately contemplated by their respective ratings. Should the severity of the disabilities increase in the future, the Veteran may always file a claim for an increased rating. Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disabilities. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is denied. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs