Citation Nr: 1335517 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-28 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral upper extremity weakness, to include as secondary to the service-connected right and left elbow disabilities. 2. Entitlement to a rating in excess of 10 percent for peripheral sensory neuropathy of the right lower extremity. 3. Entitlement to a rating in excess of 10 percent for peripheral sensory neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1968, and from March 1974 to November 1983. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The Veteran requested a hearing before a Veterans Law Judge in his August 2007 substantive appeal. However, in a June 2008 communication, the Veteran clarified that he no longer desired a hearing on appeal. Therefore the hearing request is withdrawn. 38 C.F.R. § 20.702(e) (2013). In June 2011, the Board remanded these matters for additional development. The Board also notes that the RO separately considered a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. The Veteran was denied entitlement to a TDIU in a November 2007 rating decision. The Veteran did not appeal that decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that issue is not on appeal. FINDINGS OF FACT 1. The only medical opinions to address the etiology of the Veteran's bilateral upper extremity weakness weigh against the claim. 2. During the entire appeal period, the impairment caused by Veteran's peripheral sensory neuropathy of the right lower extremity has most closely approximated mild incomplete paralysis of the sciatic nerve. 3. During the entire appeal period, the impairment caused by Veteran's peripheral sensory neuropathy of the left lower extremity has most closely approximated mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral upper extremity weakness, to include as secondary to the service-connected lateral epicondylitis of the right and left elbows, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for a rating in excess of 10 percent for peripheral sensory neuropathy of the right lower extremity are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.120, 4.124a, Diagnostic Code 8520 (2013) 3. The criteria for a rating in excess of 10 percent for peripheral sensory neuropathy of the right lower extremity are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.120, 4.124a, Diagnostic Code 8520 (2013) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in May 2006, May 2007, June 2008, and in September 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent June 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Social Security records were requested from the appropriate agency. However, VA was advised that the requested documents had previously been destroyed. VA has obtained examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). A disability may be service-connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA clinical treatment notes starting in 2005, show complaints of loss of hand grip, weakness, and pain radiating from the elbows to the hands, bilaterally. At a September 2006 VA spine examination, the examiner opined that weakness of the arms was not related to the service-connected lumbar spine disability. The examiner did not provide an opinion regarding whether bilateral upper extremity weakness was secondary to the service elbow disabilities. A September 2011 VA elbow and forearm examination report shows that that the examiner reviewed the claims file and performed a physical examination of the Veteran. The diagnosis was bilateral lateral epicondylitis. The Veteran stated that his elbow joints really did not bother him anymore, but his arms felt weak on both sides. He stated that he was not under any specific treatment for his service-connected elbow joint disability. The Veteran did not report having flare-ups. The Veteran had bilateral elbow extension to 145 degrees or greater and no limitation of extension. The Veteran had weakened movement and excess fatigability, bilaterally, without pain on palpation. Muscle strength testing was 4/5, bilaterally, for both flexion and extension of the elbows. He did not have ankylosis. The VA examiner concluded that the Veteran's service-connected lateral epicondylitis was not active and caused no work or functional impairments. The examiner found that the Veteran had mild diffuse muscle weakness of both upper extremities, slightly more than would be anticipated on the basis of age alone. The examiner opined that the mild loss of power in the upper extremities had no apparent relationship to the service-connected elbow disability. In a September 2011 VA peripheral nerves examination report, the examiner found that there appeared to be early mild atrophy of the intrinsic hand muscles, bilaterally. The Veteran reported "weakness" in both arms since the mid 1970s, that initially improved but came back in the 1990s. No particular sensory symptoms were found in either upper extremity. There was no numbness or tingling, just perceived loss of motor power affecting the entire arm on each side. The Veteran stated that the elbow condition really was not bothering him much, so his arms symptoms related to weakness, not pain or sensory deficits. He also reported weakness in both arms. Muscle strength testing was 4/5 bilaterally for elbow flexion and extension, wrist flexion and extension, grip and pinch. The examiner noted that the Veteran had muscle atrophy found to be questionable mild early muscle loss in both hands. The VA examiner was requested to opine whether the Veteran's weakness of the upper extremities was due to or a result of his service-connected bilateral elbow disability. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disability. The rationale was that there was no objective evidence demonstrating a linkage between the Veteran's service-connected bilateral elbow disabilities and his bilateral arm weakness. The examiner noted that the service-connected elbow condition was quiescent at that time. The Veteran had little to no elbow pain and full range of motion of both elbows, yet still he clinically has some mild weakness affecting virtually the entire portion of both arms. There was no clear, medically plausible basis for which the service-connected elbow disability, even if it were symptomatic, would cause muscle weakness of the entire arm. The VA examiner further opined that the Veteran claimed condition was not at least as likely as not aggravated beyond its natural progression. The rationale was based on a comparison of VA rheumatology clinic findings from August 2010 in which the Veteran's service-connected bilateral elbows were documented as having full range of motion, no tenderness or pain with palpation; and that was still the case at the present examination. The bilateral arm weakness had developed and progressed despite the service-connected elbows being minimally symptomatic, and there was no medically plausible basis for postulating how the Veteran's service-connected elbow disability could cause the arm findings noted on the current examination. In this case, bilateral upper extremity weakness and mild atrophy of the hand muscles have been objectively found. However, the underlying pathology is not provided and no disability has been diagnosed. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Complaints of bilateral upper extremity weakness and a finding of mild muscle atrophy, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. Weakness is clearly a symptom, and muscular atrophy is a wasting of muscular tissue. However, the medical evidence does not establish an actual disability that is causing weakness and muscle atrophy in the bilateral upper extremities. Therefore, there can not be a valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, even if muscle atrophy of the bilateral upper extremities was considered a diagnosed disability, there is no evidence that the Veteran had symptoms of this condition or a diagnosed disability in service or within a year after discharge. In fact, the first complaints that the Veteran had pertaining to upper extremity weakness was in 2005, more than 20 years after discharge from last period of active service. Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, there is no medical evidence that the Veteran's has a bilateral upper extremity muscle atrophy disability related to service. although the Veteran has stated that he had an episode of arm weakness in the 1970s, that is not documented in any service record or other medical record, and the examiner still opined that the claimed arm weakness was not due to service or a service-connected disability. Furthermore, the only medical opinions to address the medical relationship, if any, between the Veteran's bilateral upper extremity weakness and his service-connected disabilities weigh against the claim. The Board finds that the September 2011 VA examiner's opinions constitute probative evidence on the medical nexus question, based on review of the Veteran's documented medical history and assertions and physical examination as well as consideration of medical literature. Those opinions provided clear rationales based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for bilateral upper extremity weakness on a direct or secondary basis. Adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In support of his claim, the Veteran submitted a medical article which noted that pain associated with tennis elbow, or epicondylitis of the elbow, could be productive of pain and weakness that would radiate from the elbow to the wrist or forearm and cause difficulty with turning a door knob, shaking hands, or holding objects. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Sack v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222 (1999). However, the submitted information does not speak to the specifics of this case. The articles are not accompanied by any medical opinion linking the Veteran's bilateral upper extremity weakness to service or his service-connected elbow disabilities. Therefore, the Board finds the article is of low probative value and to be outweighed by the competent medical opinions of record. The only other evidence in support of the Veteran's claim is his own contentions and those of his representative. However, there is no indication that the Veteran or his representative possesses the requisite medical knowledge or education to render a probative opinion involving the nature and etiology of the Veteran's bilateral upper extremity weakness and service, or his service-connected elbow disabilities. Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, those statements are insufficient to establish a nexus to service or his service-connected elbow disabilities. The Board notes that under certain circumstances lay statements may support a claim for service connection by reporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds no basis for concluding that the Veteran is competent to establish the etiology of his bilateral upper extremity weakness in the absence of specialized training. Furthermore, the Board finds the examiner's opinion more persuasive because of the medical training of the examiner. Accordingly, the preponderance of the evidence of record is against a finding that the Veteran's bilateral upper extremity weakness is related to service, to include as secondary to or aggravated by his service-connected bilateral elbow disabilities. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim that would give rise to a reasonable doubt in favor of the appellant, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is to be considered when assigning a disability rating. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, 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. In rating neurologic disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2013). Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2013). In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124(a) (2013). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement. When bilateral, they are combined with application of the bilateral factor. 38 C.F.R. § 4.124(a) (2013). The Veteran's peripheral sensory neuropathy of the right and the left lower extremities are currently each rated 10 percent for incomplete paralysis of the sciatic nerve under Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked atrophy. An 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or, very rarely, lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). The words slight, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are equitable and just. 38 C.F.R. § 4.6 (2013). The use of descriptive terminology such as mild by medical examiners, 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 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2013). VA medical records note that the Veteran has complained of pain radiating from the lower back to the legs and feet bilaterally, with a burning feeling in the feet. Diagnoses include radiculopathy and peripheral neuropathy related to degenerative disc disease of the lumbar spine. A September 2006 VA peripheral nerves examination report shows that the Veteran complained of burning pain in the bottom of his feet. He did not use assistive devices to walk, but he had pain that limited mobility. The Veteran reported constant numbness and burning of the feet. He denied fatigue with flare-ups. There were no paresthesias or dysesthesias or other sensory abnormalities. Physical examination revealed reflexes of 2/4 in the upper extremities and 1/4 in the lower extremities, down going toes, and no clonus. He had decreased pinprick to the dorsum of both feet by the great toes. His gait was a slightly stooped antalgic stride. The examiner found that the Veteran had sensory impairment of the L5 bilateral sensory only. He had neuritis noted as very mild weakness very distally. A nerve conduction study was normal. A September 2006 rating decision assigned separate 10 percent ratings for peripheral sensory neuropathy of the right and the left lower extremities. VA medical records show that the Veteran had complaints of right and left lower extremity pain and numbness despite medication therapy. An August 2010 VA rheumatology clinic record shows that the Veteran complained of neuropathy of his foot, right greater than the left, between the fat pad and flexor joints, which he attributed to Paget's disease. The Veteran stated that the burning, tingling, and numbing sensation was alleviated 45 minutes after taking Morphine. Neurological examination revealed that the Veteran's strength, proximal and distal, was 5/5 bilaterally. His sensory was intact in the upper and lower extremities bilaterally. Deep tendon reflexes were intact and symmetric 2+ bilaterally in the upper and lower extremities. A September 2011 VA peripheral nerves examination report shows that the Veteran's claims file was reviewed. He was diagnosed with peripheral neuropathy of the bilateral lower extremities. The Veteran reported problems with neuropathy in both feet for many years. He stated that his foot symptoms were present all the time and extend proximally to almost mid-calf. He could walk about 150 yards and then stopped due to foot pain. The Veteran estimated that he could stand about 20 minutes. Symptoms pertaining to the right and left lower extremities included severe, constant pain, paresthesia, and dysesthesias. Muscle strength testing was 5/5 bilaterally for knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflex examination for upper and lower extremity testing was 2+ all around, a normal finding. Sensory examination was only found to be decreased in the right and left lower legs and ankles, and absent in each foot and toes. The Veteran had a normal gait. Lower extremity nerve testing was normal, bilaterally. EMG studies were performed and upper and lower extremities, bilaterally, revealed normal results. It was also noted that the Veteran's B12 level was 274 in 2006 ,which was low normal. The VA examiner concluded that the Veteran's peripheral nerve condition impacted his ability to work refinishing furniture and that the Veteran retired six or seven years prior to the examination. The Veteran stated that his retirement was due to his feet and arms. He walked without assistive devices, but his current symptoms limited ambulation, standing, and walking to 150 yards walking and 20 minutes standing. He was on B12 supplementation, but was unable to locate definitive documentation of B12 deficiency. The VA examiner concluded that the current examination provided evidence of peripheral sensory neuropathy, affecting both lower extremities, with mild-to-moderate bilateral sensory deficits on examination, but disproportionately severe symptomatology. No paralysis of either lower extremity was found on examination. The Veteran walked independently, without using assistive devices. After reviewing the evidence of record, the Board finds that the criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the right and the left lower extremities are not met. There is no medical evidence to support that the Veteran's neurological symptoms are anything more than mild in nature. The objective findings of record indicate that the Veteran's impairment in each lower extremity is wholly sensory in nature. The examinations of record have not shown any objective findings of motor impairment with muscle strength impairment. There are also no findings of muscle atrophy in the lower extremities. Moreover, the level of sensory disturbance has not been objectively shown to be more than mild in degree, as in an August 2010 VA rheumatology record. The September 2011 VA examination found mild to moderate sensory deficits, with disproportionately severe symptomatology. Even considering the September 2011 VA examiner's use of descriptive terminology of mild to moderate, although an element of evidence to be considered by the Board, it is not dispositive of the issue of higher ratings in this case when considering the collective evidence of record. In any event, that examiner described mild to moderate sensory deficits. When the involvement is wholly sensory, the rating is to be for mild, or at most moderate, incomplete paralysis. If the sensory involvement is only mild to moderate, the Board finds that the sensory involvement is not of the severity to warrant elevation to moderate incomplete paralysis. 38 C.F.R. §§ 4.2, 4.6 (2013). The Veteran is competent to report on symptoms and credible in his belief that his symptoms are more severe than currently rated. However, the nature and degree of severity of his peripheral neuropathy involves a medically complex matter. The Board finds that the medical evidence is more probative in assessing whether the Veteran's overall disability more closely approximates a higher rating. Absent medical evidence collectively showing more than mild incomplete paralysis, initial ratings in excess of 10 percent for peripheral neuropathy of the right and the left lower extremities are not warranted. In addition, the Board notes that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1) (2013); Shipwash v. Brown, 8 Vet. App. 218 (1995). The rating criteria reasonably describe the Veteran 's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. The Veteran's symptoms of pain, tingling, and numbness of the feet are not exceptional or unusual features of his disabilities. Thus, his disability picture for his peripheral sensory neuropathy of the right and the left lower extremities is contemplated by the rating schedule, and the assigned schedular ratings are adequate. Therefore, referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008) (the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher rating for periphery sensory neuropathy of the right or left lower extremity. Therefore, the claims for increased ratings are denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral upper extremity weakness, to include as secondary to service-connected right and left elbow disabilities, is denied. A rating in excess of 10 percent for peripheral sensory neuropathy of the right lower extremity is denied. A rating in excess of 10 percent for peripheral sensory neuropathy of the left lower extremity is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs