Citation Nr: 1335277 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-30 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for peripheral neuropathy of the right foot for the period prior to May 26, 2011, in excess of 10 percent from May 26, 2011 to March 13, 2013, and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from December 1977 to March 1979, from February 1986 to April 1987, and from August 1991 to December 1991. He also had additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for peripheral neuropathy of the right foot and assigned an initial noncompensable rating, effective April 28, 2006, the date of claim. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of these proceedings has been associated with the Veteran's claims file. The Board remanded this case for further development in October 2012. In a December 2011 rating decision, the RO increased the Veteran's initial rating for his peripheral neuropathy of the right foot to 10 percent, effective May 26, 2011, and again in a September 2013 rating decision, the RO increased the Veteran's initial rating to 20 percent, effective March 13, 2013. On a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issue remains in appellate status and has been characterized as shown on the first page of this decision. The Board observes that an addendum opinion was obtained in August 2013. Although the RO issued a supplemental statement of the case (SSOC) in September 2013, it is not clear whether the opinion was considered at that time. Although in a September 2013 signed statement, the Veteran waived RO consideration of any new evidence, it is not clear whether this evidence could be considered new as it was of record at the time of the SSOC. Nevertheless, as this opinion simply addressed the subject of secondary service connection, which has already been established, rather than the severity of the Veteran's peripheral neuropathy of the right foot, which is the matter at issue, this opinion is not relevant to the claim on appeal and the Board may proceed with a decision without prejudice to the Veteran. 38 C.F.R. § 20.1304(c) (2013). The Board notes that the issue of entitlement to service connection for a bilateral knee disorder, to include surgical scars was also remanded in October 2012. However, in the September 2013 rating decision, the RO granted service connection for right and left knee disorders as well as bilateral portal knee scars. As such grant represents a complete grant of the benefits sought on appeal, these issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of such file reveals that it is either duplicative of the evidence contained in the paper claims file or not pertinent to the current appeal. FINDING OF FACT For the entire appeal period, i.e., since VA received his initial claim on April 28, 2006, the Veteran's service-connected peripheral neuropathy of the right foot affects the posterior tibial nerve and has more nearly approximated moderate incomplete paralysis of such nerve, but has not been productive of severe incomplete paralysis or complete paralysis of the posterior tibial nerve. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial 10 percent rating, but no higher, for the period prior to March 13, 2013, for peripheral neuropathy of the right foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8525 (2013). 2. The criteria for the assignment of an initial rating in excess of 20 percent beginning March 13, 2013, for peripheral neuropathy of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8525 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran's claim arises from an appeal of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains VA examinations. Despite requests from the RO, the Veteran has not identified any relevant treatment for his right foot peripheral neuropathy. Moreover, the Veteran's statements, including the Veteran's Board hearing testimony, in support of the claim are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran was provided with VA examinations in October 2006, June 2008, May 2011, and March 2013 so as to adjudicate his initial rating claim. As will be discussed further herein, while the first three examinations provide findings relevant to the Veteran's disability, such did not identify the affected nerve or specify the degree of severity. Additionally, the Board observes that the May 2011 VA examination report indicated that an EMG would be ordered. As discussed further below, the Board in its prior remand directed the RO to contact the Veteran to request that he identify any relevant treatment records, to include any EMG report, and obtain any necessary authorizations. The Veteran did not respond to the RO's request. However, review of a subsequent VA examination done in March 2013 indicated that an EMG was performed in June 2011 at the VA. Although a complete copy of this report has not been associated with the claims file, the Board finds no prejudice to the Veteran in the issuance of this decision as the findings from the EMG were discussed and considered by the March 2013 VA examiner when addressing the severity of the Veteran's right foot peripheral neuropathy. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Most recently, the Veteran was afforded a VA examination in March 2013 to evaluate the severity of his service-connected peripheral neuropathy of the right foot. The Board finds that the VA examination is adequate because, as discussed below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it provides detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent March 2013 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Additionally, in July 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the July 2012, the Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the current severity of the Veteran's peripheral neuropathy and the functional impact it has on his daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of the issue and suggesting submission of evidence in the subsequent remand the Board issued to develop this claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Finally, the Board finds that there was substantial compliance with the October 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in October 2012 directed the AOJ to contact the Veteran to identify all VA and non-VA providers who had treated him for peripheral neuropathy of the right foot since April 2006, to include an EMG report referenced by the May 2011 VA examiner. In November 2012, the AOJ sent a letter to the Veteran requesting this information. However, the Veteran did not provide any further information. Further, the AOJ was also directed to schedule the Veteran for a VA examination. As noted above, the Veteran was afforded a VA examination in March 2013 that is adequate for appellate review. Accordingly, the Board finds that there has been substantial compliance with the October 2012 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis 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. 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). Where, as in the instant case, 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). As in the instant case, 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. The RO has rated the Veteran's peripheral neuropathy of the right foot, by analogy, under Diagnostic Code 8599-8520 for paralysis of the sciatic nerve. The hyphenated diagnostic code was used in the instant case because the RO determined that the Veteran's right foot disability was an unlisted condition that required rating by analogy. See 38 C.F.R. § 4.27. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned 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, DC 8520. However, the most recent VA examination in March 2013 indicated that the primary nerve affected in the Veteran's case was the posterior tibial nerve. Moreover, the examiner determined that the sciatic nerve was normal. In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review. Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference. Indeed, the Court has also held that, although the reason for the change must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet.App. 625 (1992). In the instant case, as the evidence demonstrates that the Veteran's peripheral neuropathy of the right foot affects his posterior tibial nerve, as opposed to the sciatic nerve, the Board finds that such disability is more appropriately rated under Diagnostic Code 8525. In this regard, Diagnostic Code 8525 provides for paralysis of the posterior tibial nerve. Under this code, a 10 percent rating is assigned for mild or moderate incomplete paralysis. A 20 percent rating is assignable for severe incomplete paralysis of the posterior tibial nerve and a maximum 30 percent rating is assignable for complete paralysis of the posterior tibial nerve; i.e., plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost. 38 C.F.R. § 4.124a, Diagnostic Code 8525. Under the provisions of 38 C.F.R. § 4.124a, the term "incomplete paralysis" 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. See 38 C.F.R. § 4.124a. The Veteran filed his current claim for service connection in April 2006. At an October 2006 VA examination, the Veteran reported numbness and tingling in his feet. On neurological examination, the Veteran had a normal gait. Deep tendon reflexes (DTR) were 2+, patella 1 + and ankle 0. Strength was 5/5 and sensory examination was normal except for decrease in sensation in the left 5th toe and the plantar surface of the left foot. The impression was neuropathy at least as likely as not related to his back pain. The Veteran was afforded a VA examination in January 2008 for his low back disability. The Veteran complained of right leg paresthesias and dysthesias in a vaguely L5 radicular pattern. On neurological examination, sensation was intact to light touch for all dermatomes. Motor strength was 5/5 and there was no muscle atrophy. Reflexes were physiologic and symmetric. Babinski testing was negative, but straight leg raising was subjectively positive on the right. A contemporaneous general medical examination showed again that the Veteran reported radicular symptoms. On neurologic examination, DTRs were 2+ and motor appeared to be 5/5. Vibratory, pinprick sensation appeared to be intact except for some decreased pinprick in the right upper thigh area. The Veteran described decreased sensation on the lateral side of foot. The Veteran was afforded a VA examination for his right foot in June 2008. The claims file was reviewed. The Veteran reported having numbness and tingling of the right lower leg and foot as well as pain and some weakness in his right foot. He also reported that he could stand for no more than 5 minutes before worsening, could walk for no more than 100 yards, could not go up or down stairs, and could not lift more than 15 or 20 pounds. The examiner found no stiffness, swelling, heat, or redness. The examiner diagnosed a post-traumatic strain of the right foot with moderate symptoms and a history of continued foot pain. The examiner opined that the Veteran's symptoms were likely secondary to his lumbar spine condition. In his September 2008 notice of disagreement, the Veteran asserted that "I now have DEAD SPOTS on TOP and Bottom of my right foot with tingling that goes up my right leg." The Veteran also reported a loss of pinprick sensation in his 3rd, 4th, and 5th toes. In his July 2009 substantive appeal, the Veteran asserted that his right foot has gotten worse, and he could not go all day without his right foot hurting to the point of limping. He also stated that, after performing normal functions for more than half a day, he becomes laid up the next day due to the pain. The Veteran was afforded another VA examination in May 2011. The claims file was not available for review. The Veteran reported constant right foot numbness and walking aggravated pain in the right leg. There was no tingling or numbness in the right leg. No EMGs had been done except prior to lumbar spine surgery eight years ago. On physical examination, DTRs were 1+. He had good monofilament testing and pinprick sensation, but loss of vibratory sensation. His left calf was 16 inches and his right calf was 17 inches in diameter. There were no muscle spasms or atrophy. The diagnosis was peripheral neuropathy of the right foot. The examiner noted that an EMG would be obtained. At his July 2012 hearing, the Veteran requested a 10 percent rating. He asserted that during his May 2011 VA examination the examiners "shocked all these different nerve points and my foo[t] didn't move....I could feel them where they were shocking me on the leg, but my foot wasn't moving." See transcript, pp. 21-22. The Veteran reported that his right foot muscles work, but the nerves do not. Id., p. 23. He also testified that he constantly stumbles because he cannot feel that his right foot is there. Id., pp. 21-22. The Veteran stated that one time "I had fire ants all over my foot and I didn't notice it until somebody" told him that he was being bitten. Id., p. 23. He further explained that he cannot feel his right foot. Id., p. 28. The Veteran testified that his right foot symptoms have not gotten worse, but rather the lack of sensation in his right foot has been the same from the time he filed his claim in April 2006 to the present. Id., p. 25. With respect to employment, he stated that his right foot peripheral neuropathy causes him to have to work at a desk, which restricts his pay growth. Id., p. 27. In its October 2012 remand, the Board determined that the prior VA examinations were inadequate as the examiners did not identify the affected nerve or specify the degree of severity. The Board remanded this case in October 2012 to afford the Veteran another VA examination and to obtain any EMG testing that had been done. The Board specifically requested that given the deficiencies in the prior VA examinations, the examiner should assess the severity of the Veteran's right foot for the entire appeal period from April 2006. The Veteran was afforded another VA examination in March 2013. The examiner diagnosed tarsal tunnel syndrome as of June 24, 2011. The Veteran described pain, paresthesias and/or dysesthesias and numbness, which were all characterized as moderate. Muscle strength was 5/5 and DTRs were normal. Sensory examination showed decreased vibratory sensation in the right foot/toes described as hyperesthesias of the right foot. There was also positive Tinel's of the right ankle. Gait was normal. The examiner determined that the Veteran had moderate incomplete paralysis of the posterior tibial nerve. The sciatic nerve as well as the other nerves of the right lower extremity was found to be normal. The Veteran did not use assistive devices. The examiner observed that a June 2011 EMG study was abnormal. He reported that the EMG study showed medial and latera plantar neuropathy consistent with tarsal tunnel syndrome, which was neuritis of the right posterior tibial nerve and was considered incomplete and moderate. The examiner also determined that the Veteran's disability did not impact his ability to work. As it was unclear whether the VA examiner who conducted the March 2013 examination had reviewed the claims file, the RO sent the claims file to another examiner for review, which was done in August 2013. As noted above, the examiner appeared to simply provide another opinion addressing whether the Veteran's right foot peripheral neuropathy was associated with his service-connected low back disability, which has already been established. After considering the totality of the evidence and when resolving the benefit of the doubt in favor of the Veteran, the evidence supports assigning an initial 10 percent rating for the period prior to March 13, 2013, for the Veteran's service-connected peripheral neuropathy based on moderate incomplete paralysis under Diagnostic Code 8525. The evidence of record documented weakness, pain, tingling, numbness, paresthesias and sensory deficits in the right foot. Moreover, the June 2008 VA examination also characterized the level of disability as moderate, which is the criteria for a 10 percent rating under this code. Further, at the Board hearing, the Veteran reported that his lack of sensation had been the same since he filed his claim in April 2006 and as a lay person, the Veteran is competent to report his symptoms. Importantly, given deficiencies in the prior VA examinations, the Board specifically requested upon remand for a VA examiner to assess the severity of the Veteran's right foot throughout the course of the appeal and the March 2013 VA examiner responded that the Veteran's right foot disability was considered incomplete and moderate which meets the criteria for a 10 percent rating under Diagnostic Code 8525 for paralysis of the posterior tibial nerve. The examiner did not indicate that this severity was of recent onset. As such, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted for peripheral neuropathy of the right foot for the period prior March 13, 2013. However, the Board finds that an initial rating in excess of 10 percent is not warranted for peripheral neuropathy of the right foot under Diagnostic Code 8525. There is no competent medical evidence of moderately severe incomplete paralysis to warrant a rating in excess of 10 percent. While reflexes have been abnormal at times, there has been no finding of muscle atrophy or decreased strength. Moreover, reflexes were normal at the most recent VA examination. The Veteran's right lower extremity strength was 5/5 at all VA examinations conducted during the pendency of this appeal. Moreover, the most recent VA examiner characterized the Veteran's right foot disability picture as moderate. In sum, the Board believes that the Veteran's disability is consistent with a moderate disability picture warranting a 10 percent rating under Diagnostic Code 8525 for moderate incomplete paralysis of the posterior tibial nerve. As relevant to the period beginning March 13, 2013, the Veteran has been assigned a 20 percent rating. However, he is not entitled to an initial rating in excess of 20 percent for such time period as there is no evidence that his peripheral neuropathy of the right foot results in complete paralysis of the posterior tibial nerve. In this regard, there is no evidence that plantar flexion is lost, frank adduction of foot is impossible, flexion and separation of toes is abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, or plantar flexion of foot is lost. Therefore, for the period beginning March 13, 2013, an initial rating in excess of 20 percent is not warranted. The Board has considered whether the Veteran is entitled to a higher or separate rating under any other applicable Diagnostic Code referable to nerves, to include Diagnostic Code 8520 pertaining to the sciatic nerve, under which he was previously rated. However, as demonstrated at the March 2013 VA examination, no nerves other than the posterior tibial nerve were affected by the Veteran's peripheral neuropathy of the right foot. Specifically, such revealed that the sciatic nerve, external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve were normal. Therefore, a higher or separate rating under any other Diagnostic Code pertaining to the impairment of nerves, including Diagnostic Code 8520, is not warranted. Likewise, as there are no other symptoms outside of the previously discussed neurological impairments, the Board finds that no other Diagnostic Codes are potentially applicable. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his peripheral neuropathy of the right foot. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected peripheral neuropathy of the right foot; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning additional staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular 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)). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 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. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected peripheral neuropathy of the right foot with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's 10 percent rating contemplates his current neurological deficits. There are no additional symptoms that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, although the Veteran has reported that his pay growth has been restricted, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the record shows that the Veteran is currently employed. Accordingly, there is no need for further analysis with respect to this matter. In conclusion, an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected peripheral neuropathy of the right foot, for the period prior to March 13, 2013. The Board, however, finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent prior to such date and in excess of 20 percent thereafter. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER For the period prior to March 13, 2013, an initial 10 percent rating, but no higher, for peripheral neuropathy of the right foot is granted, subject to the laws and regulations governing payment of monetary benefits. Beginning March 13, 2013, an initial rating in excess of 20 percent for peripheral neuropathy of the right foot is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs