Citation Nr: 1335576 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 05-13 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating higher than 20 percent for Type II Diabetes Mellitus with erectile dysfunction prior to November 14, 2011, and to a rating higher than 40 percent since. 2. Entitlement to an initial rating higher than 10 percent for associated diabetic peripheral neuropathy of the left lower extremity prior to November 14, 2011, and to a rating higher than 40 percent since. 3. Entitlement to an initial rating higher than 10 percent for associated diabetic peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1968 to August 1970. This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2010, the Board remanded these claims, along with a claim for an earlier effective date for a total disability rating based on individual unemployability (TDIU) and claims for service connection for a low back disorder and cataracts, to provide the Veteran an opportunity to testify at a videoconference hearing before a Veterans Law Judge of the Board. The Veteran had this hearing in February 2011. The undersigned Veterans Law Judge presided and held the record open for 30 additional days following the hearing to allow the Veteran time to obtain and submit additional supporting evidence. Later that month, he submitted additional VA outpatient treatment records and waived his right to have the RO initially consider the records in this batch of evidence that were not already on file and previously considered. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Also in February 2011, through his accredited representative, the Veteran submitted a written request withdrawing his petition to reopen a previously denied claim of entitlement to service connection for a skin disorder, including as secondary to herbicide exposure. See his representative's statement dated February 18, 2011. So this claim is no longer at issue. 38 C.F.R. § 20.204 (2013). In September 2011, the Board again remanded the claims to obtain still additional records and medical information. Also, received at the Board in October 2012 were statements from the Veteran that were construed as additional contentions in support of his claims. He contemporaneously waived his right to have the RO or Appeals Management Center (AMC), as the Agency of Original Jurisdiction (AOJ), initially consider these additional statements. 38 C.F.R. §§ 20.800, 20.1304. In January 2013, the Board denied the claims for an earlier effective date for the TDIU and for service connection for the low back disorder and cataracts. Thus, those claims are no longer before the Board. Conversely, the Board remanded the claims for higher ratings for the Type II Diabetes Mellitus with erectile dysfunction and the associated peripheral neuropathy of the lower extremities for still further development. In another rating decision since issued in March 2013, the AMC readjudicated these claims and awarded a higher 40 percent rating for the Type II Diabetes Mellitus with erectile dysfunction effective November 14, 2011, and a higher 40 percent rating for the associated peripheral neuropathy affecting the left lower extremity, also effective November 14, 2011. As well, the AMC granted service connection for associated peripheral neuropathy of the left and right upper extremities and assigned a separate 20 percent rating for each upper extremity effective February 13, 2013. Also determined to be service connected, and an additional residual or complication of the diabetes, was diabetic nephropathy, for which the Veteran received a separate 0 percent (i.e., noncompensable) rating as of February 25, 2013. The Veteran has not since, in response, separately appealed those initial ratings and effective dates that were assigned for the peripheral neuropathy affecting his upper extremities and nephropathy. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). In a supplemental statement of the case (SSOC) also issued in March 2013, the AMC denied even higher ratings for the Type II Diabetes Mellitus with erectile dysfunction and associated peripheral neuropathy affecting the left lower extremity, meaning even higher than 40 percent. The AMC also confirmed and continued the existing 10 percent rating for the right lower extremity peripheral neuropathy, so these claims are again before the Board. In an April 2013 statement, the Veteran indicated he wants to reopen his claim for "Agent Orange." He did not however specify as concerning what particular disability he has as a result or consequence, and to the extent not concerning his Type II Diabetes Mellitus with erectile dysfunction and the associated peripheral neuropathy of the left lower extremity, the claim is not currently before the Board. So the Board is referring this additional claim, whatever it specifically may concern, to the RO for any appropriate action. FINDINGS OF FACT 1. Prior to November 14, 2011, the Veteran's service-connected diabetes required insulin and a restricted diet, but not regulation of his activities. 2. Since November 14, 2011, his diabetes has required insulin, a restricted diet and regulation of his activities; but there have not been episodes of ketoacidosis or hypoglycemia requiring hospitalization or twice a month visits to a diabetic care provider. 3. Prior to November 14, 2011, the associated left lower extremity peripheral neuropathy was manifested by moderate impairment of the sciatic nerve; moderately severe impairment was not shown. 4. Since November 14, 2011, the left lower extremity peripheral neuropathy has been manifested by no more than moderately severe impairment of the sciatic nerve; severe impairment with marked muscular atrophy has not been shown. 5. The right lower extremity peripheral neuropathy always has been manifested, at most, by mild impairment of the sciatic nerve; moderate impairment has not been shown. CONCLUSIONS OF LAW 1. Prior to November 14, 2011, the criteria were not met for a rating higher than 20 percent for the Type II Diabetes Mellitus with erectile dysfunction. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.119, Diagnostic Code (DC) 7913 (2013). 2. Since November 14, 2011, the criteria have not been met for a rating higher than 40 percent for the Type II Diabetes Mellitus with erectile dysfunction. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.119, DC 7913 (2013). 3. Prior to November 14, 2011, the criteria were met for a higher initial rating of 20 percent, though no greater rating, for the associated peripheral neuropathy of the left lower extremity. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.124, DC 8520 (2013). 4. But since November 14, 2011, the criteria have not been met for a rating higher than 40 percent for the associated peripheral neuropathy of the left lower extremity. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.124, DC 8520 (2013). 5. For the entire appeal period, the criteria have not been met for an initial rating higher than 10 percent for the associated peripheral neuropathy of the right lower extremity. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.124, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Regarding the claim for higher ratings for the underlying diabetes, an April 2003 letter explained the evidence necessary to substantiate this and other claims and discussed VA's and the Veteran's responsibilities in obtaining the necessary supporting evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). And with regards to the specific notice requirements as concerning increased rating claims, the Federal Circuit Court vacated the lower Court's (CAVC's) decision in Vasquez-Flores, concluding that generic notice is all that is required and that VA does not have to advise an appellant of alternative DCs or ask that he submit daily-life evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Although that initial letter did not specifically inform the Veteran of how a disability rating and effective date are determined, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), this claim did not arise in the context of him trying to establish his entitlement to service connection for this disability since that already had been done in years past. So the rating for his disability was not a "downstream" issue arising out of his initial claim. Moreover, he was specifically informed of the general rating criteria in an August 2008 notice letter, and subsequent to the provision of that notice his claim was readjudicated in an August 2009 SSOC. Accordingly, he was not prejudiced by the timing of the notice provided. Both the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) and the United States Court of Appeals for Veterans Claims (Court/CAVC) have clarified that VA can provide additional necessary notice subsequent to the initial AOJ, i.e., RO adjudication, with a subsequent readjudication of the claim, so that the essential fairness of the adjudication, as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding the claims for higher initial ratings for the associated peripheral neuropathy of the lower extremities, left and right, these claims arose from the initial grant of service connection. For initial-rating claims, where, as here, service connection has been granted and the initial rating and effective date assigned, the claim of entitlement to service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of an NOD with the rating of the disability does not trigger additional § 5103(a) notice. See Dingess/Hartman v. Nicholson, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this occurred in this particular instance. See also VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Veteran was provided the required SOC, also since has been provided an SSOC, discussing the reasons and bases for assigning the initial ratings versus higher ratings, and even once the rating for the left lower extremity peripheral neuropathy was increased, for not assigning an even greater rating. The SOC and SSOC also cited the applicable statutes and regulations, so he has received all required notice concerning these initial-rating claims. With regards to the duty to assist, the claims file contains VA treatment records, private treatment records, the reports of VA examinations, and the assertions of the Veteran and his representative, including the transcript of their February 2011 hearing testimony before the Board. Regarding that hearing before the Board, 38 C.F.R. 3.103(c)(2) requires that a VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, to this end, during the hearing all parties agreed as to the issues on appeal, including those now being decided. The parties also generally discussed the evidence then of record and any additional evidence that might also need to be obtained. Indeed, partly as a consequence, the Board's subsequent remands of these claims instructed the RO/AMC to obtain outstanding Social Security Administration (SSA) records and VA treatment records and to afford the Veteran VA compensation examinations. This development since has been completed, so there was compliance, certainly substantial compliance, with these remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the terms of the remand, and imposes upon VA a concomitant duty to ensure compliance with these terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication the Veteran has any additional evidence to submit or that there is any additional evidence for VA to obtain regarding the claims being decided. Notably, in an April 2013 response to the most recent March 2013 SSOC, the Veteran affirmatively indicated he did not have any additional evidence to submit. Thus, the Board finds that the Board's duties under Bryant have been met. Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence pertinent to his claims needing to be obtained. II. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" ratings, irrespective of whether concerning an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Indeed, the Veteran already has what amounts to "staged" ratings for his Type II Diabetes Mellitus with erectile dysfunction and associated left lower extremity peripheral neuropathy, inasmuch as the ratings for these disabilities have been increased incrementally during the pendency of this appeal. So the Board will determine whether this was an appropriate staging of the ratings for these disabilities and additionally whether a staged rating also is warranted for the diabetic peripheral neuropathy affecting his right lower extremity. Where there is a question as to which of two evaluations apply, 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §§ 3.102, 4.3 When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the veteran prevailing in either event, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Type II Diabetes Mellitus with Erectile Dysfunction In a September 2001 rating decision, the RO granted service connection for diabetes, assigning a 20 percent initial rating retroactively effective from July 2001. In a subsequent November 2001 rating decision an earlier effective date of September 25, 2000 was assigned for the award of service connection. In a March 2013 rating decision during the pendency of this current appeal, a higher 40 percent rating was assigned retroactively effective from November 14, 2011. So this claim now concerns whether a rating higher than 20 percent was warranted prior to November 14, 2011, and whether a rating higher than 40 percent has been warranted since. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (An increase in the rating for a service-connected disability during the pendency of an appeal does not abrogate the appeal unless the Veteran receives the highest possible rating or expressly indicates he is satisfied or content with the higher rating he received, since greater than the rating he had.). Diagnostic Code 7913 provides a 10 percent rating for diabetes mellitus that is manageable by restricted diet only. A rating of 20 percent is assigned for diabetes mellitus when insulin and a restricted diet are required or when an oral hypoglycemic agent and a restricted diet are required. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A rating of 60 percent is assigned for diabetes mellitus requiring insulin, a restricted diet, and the 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 rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and the 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. Regulation of activities is defined by DC 7913 as the "avoidance of strenuous occupational and recreational activities." In order to meet this criterion, the evidence must show that it is medically necessary for occupational and recreational activities to be restricted in response to the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119. For the entire appeal period, the Veteran's diabetes has been shown to require insulin and a restricted diet. Prior to November 14, 2011, however, regulation of activities was not shown to be medically necessary. Notably, he made earlier reports that he needed to regulate his activities due to his diabetes, including his assertion during his February 2011 videoconference hearing before the Board that he had to stop driving because of experiencing hypoglycemic episodes (low sugar count making him dizzy and such). But prior to November 14, 2011, there are no medical findings indicating that such regulation was required. During a November 14, 2011 VA compensation examination and again during a more recent February 2013 VA compensation examination, this necessary additional finding was made, thus justifying assignment of the higher 40 percent rating effective November 14, 2011, the date of that initial VA examination showing this required greater level of disability. 38 C.F.R. § 4.119, DC 7913. That date - November 14, 2011 - therefore marks the effective date for this higher rating. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1) and (o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997) (If an increase in disability occurs after the claim for a higher rating is filed, then the date that the increase is shown to have occurred (date entitlement arose) is the effective date according to 38 C.F.R. § 3.400(o)(1)). The Board also sees the Veteran has reported difficulty with hypoglycemic episodes at various times throughout the appeal period. However, there is no indication these episodes have required either one or two hospitalizations per year or twice a month visits to a diabetic care provider. In this regard, both the September 2011 and February 2013 VA examiners specifically found that visits of such character and frequency were not required. A prior May 2006 VA examiner also made this finding and there is no medical evidence to the contrary. Accordingly, there is no basis for assigning a higher 60 percent rating for any time frame during the appeal period. Id. As indicated, separate ratings also may be assigned for complications of diabetes. 38 C.F.R. § 4.119, DC 7913, Note (1). In this particular case at hand, the Veteran already has been assigned separate ratings for diabetic peripheral neuropathy of his lower extremities, but also as mentioned rather recently also for diabetic peripheral neuropathy of his upper extremities, as well as for diabetic nephropathy and mild apical ischemia. Aside from that, because of the additional complication of his erectile dysfunction (ED), he has been awarded special monthly compensation (SMC) for loss of use of a creative organ. There is no indication from the record that he suffers any additional complications of his diabetes that, in turn, would require assignment of any additional separate ratings. Id. B. Peripheral Neuropathy of the Lower Extremities The neurologic DC applicable to the Veteran's bilateral (left and right) lower extremity peripheral neuropathy associated with his service-connected diabetes mellitus is DC 8520, concerning the evaluation of sciatic nerve paralysis. 38 C.F.R. § 4.124a, DC 8520. Under DC 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; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild", "moderate", "moderately severe" and "severe". Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The medical documentation of record shows the Veteran has had left foot drop since March 2003 and that, because of this, he was not permitted to continue working as a correctional officer. But the weight of the evidence shows that this foot drop is not caused by or related to his diabetic peripheral neuropathy of the lower extremities. Instead, the evidence indicates the foot drop constitutes impairment of the sciatic nerve caused by his non-service connected degenerative disc disease (DDD) of his lumbar spine. This finding is clearly supported by an October 2003 VA physician's finding that earlier MRI and EMG testing had indicated the foot drop and left lower extremity nerve changes resulted from abnormalities in the L4-L5 and L5-S1 vertebral spaces rather than from diabetic neuropathy. Confirmation of this comes in the way of a June 2005 VA physician's finding that the Veteran's left ankle/foot drop was a sequela (i.e., residual) of his spinal stenosis; a May 2008 VA neurosurgeon's finding that the Veteran had chronic S1 radiculopathy with severe radicular pain and foot drop; and a March 2013 VA examiner's opinion that the Veteran's left foot drop was most likely due to lumbar radiculopathy and not due to diabetic peripheral neuropathy based on his history of left leg weakness and lumbar surgery and based on findings of radiculopathy, lumbosacral plexopathy or sciatica on recent (February 2013) EMG testing. There is no medical evidence directly to the contrary. Instead, there are only a couple of additional indeterminate medical opinions indicating that the foot drop "could be" caused by either the Veteran's lumbar spine disability or by his diabetic neuropathy. Given the indefinite nature of these opinions and the clearer nature of the supporting opinions, the weight of the evidence indicates the foot drop is caused by the Veteran's non-service connected lumbar spine disability and unrelated to his diabetic neuropathy. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (only when VA adjudicators are unable to distinguish the extent of symptoms attributable to service-related causes, i.e., service-connected disability, do they in turn have to resolve this doubt in the Veteran's favor according to 38 C.F.R. §§ 3.102 and 4.3 and, in effect, for all intents and purposes presume the symptoms are associated with service-connected disability). Notably, the Veteran also has attributed his foot drop with the accompanying need to wear a brace and use a walker to the diabetic neuropathy, but as he is a layman with no demonstrated knowledge, training, or expertise allowing him to probatively comment on or determine the etiology of foot drop, his unsubstantiated lay testimony concerning this posited correlation cannot be afforded more than very minimal, if any, probative weight. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly, when evaluating the severity of the diabetic neuropathy, the Board will not consider the left foot drop and its effects. See Mittleider, supra. Although the foot drop clearly has been shown to be unrelated to the left lower extremity diabetic neuropathy, it is more difficult to discern the underlying etiology of the Veteran's more subtle left lower extremity neurological symptoms. As noted above, however, in evaluating sciatic and other nerve impairment, when the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. Notably, the evidence does not show that the diabetic neuropathy has caused any motor impairment of the left lower extremity as all such impairment (i.e. the foot drop with calf atrophy and some findings of reduced strength) has been associated with the lumbar spine disability. Accordingly, resolving reasonable doubt in his favor, the Board will attribute all of left lower extremity sensory impairment to the diabetic neuropathy and assign a 20 percent rating (the higher of the two ratings available) for the entire time frame prior to November 14, 2011. The Board will not disturb the existing 40 percent rating, however, which already has been assigned from November 14, 2011. Regarding the right lower extremity, the involvement is similarly shown to be wholly sensory. However, this impairment was specifically described as mild incomplete paralysis of the sciatic nerve during the most recent February 2013 VA examination. Also, the Veteran was found to have no sensory loss on the right during a May 2006 VA general medical examination, normal light touch sensation during a May 2006 VA peripheral neuropathy examination, intact vibratory sense during a January 2008 VA podiatry visit, and normal right lower extremity vibration sensation during his November 2011 VA examination. He has affirmatively reported right lower extremity sensory impairment, including leg pain, dyesthesias, paresthesias and burning sensations predominantly in the foot and is competent to make these reports. Given the specific objective finding of the VA medical professionals over the course of the appeal period, however, and particularly the February 2013 VA examiner's characterization, the Board finds that, overall, the evidence indicates this sensory impairment is best described as mild incomplete paralysis. Accordingly, a rating exceeding 10 percent for this right lower extremity peripheral neuropathy is unwarranted at any time during the rating period. Some of the evidence suggests potential impairment from diabetic peripheral neuropathy of other lower extremity nerves aside from the sciatic nerve. However, as the ratings assigned for sciatic nerve impairment are meant to encompass the full extent of the Veteran's lower extremity pathology stemming from his diabetic peripheral neuropathy, assigning a separate rating for such impairment (if actually present) would amount to impermissible pyramiding. 38 C.F.R. § 4.14. In sum, given that lower extremity motor impairment stemming from the diabetic neuropathy is not shown; resolving reasonable doubt concerning the extent of his left lower extremity sensory impairment; and given that the right lower extremity sensory impairment is most consistent with mild incomplete paralysis, a rating exceeding 10 percent is unwarranted for the right lower extremity diabetic neuropathy, although a higher 20 percent initial rating, though no greater, is warranted for the left lower extremity neuropathy prior to November 14, 2011. C. Extra-schedular Consideration The Board also has considered whether the Veteran's claims for higher ratings for his diabetes and associated lower extremity peripheral neuropathy should be referred for consideration of extra-schedular ratings, and has concluded that no such referral is warranted for any of the time frames in question. As explained above, his diabetes symptoms, including hyperglycemia and hypoglycemia, as well as his peripheral neuropathy symptoms, including numbness, paresthesias, dyesthesias and pain, are fully contemplated by the applicable diagnostic criteria. Moreover, even one step further, there is nothing in the record suggesting his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See Thun v. Peake, 22 Vet. App. 111 (2008) (discussing the three-part test for determining whether an extra-schedular referral is warranted). ORDER Prior to November 14, 2011, a rating higher than 20 percent for the diabetes is denied. Since November 14, 2011, a rating higher than 40 percent for the diabetes is denied. Prior to November 14, 2011, a higher 20 percent initial rating, though no higher rating, is granted for the peripheral neuropathy of the left lower extremity, subject to the statutes and regulations governing the payment of VA compensation. Since November 14, 2011, a rating higher than 40 percent for the peripheral neuropathy of the left lower extremity is denied. An initial rating higher than 10 percent for the peripheral neuropathy of the right lower extremity is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs