Citation Nr: 1336153 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-00 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus for the period prior to March 27, 2012, and in excess of 40 percent thereafter. 2. Entitlement to an initial compensable rating for peripheral neuropathy in the right upper extremity for the period prior to March 17, 2012, and in excess of 20 percent thereafter. 3. Entitlement to an initial compensable rating for peripheral neuropathy in the left upper extremity for the period prior to March 17, 2012, and in excess of 20 percent thereafter. 4. Entitlement to rating in excess of 10 percent for peripheral neuropathy in the right lower extremity. 5. Entitlement to a rating in excess of 10 percent for peripheral neuropathy in the left lower extremity. 6. Entitlement to a rating in excess of 10 percent for residuals of a cerebral vascular accident (CVA) for the period since June 1, 2008 7. Entitlement to a total disability rating based on individual unemployability (TDIU), for the period prior to March 17, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to September 1973. This matter is on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In November 2012, the Board remanded this appeal for further development. In an April 2013 rating decision, higher staged ratings were granted for the Veteran's service-connected diabetes mellitus and peripheral neuropathy in the bilateral upper extremities. However, the Veteran was not granted the maximum ratings available; therefore, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the period prior to March 27, 2012, the Veteran's diabetes mellitus was characterized by the need for insulin and restricted diet, but prescribed restriction of activities has not been shown. 2. For the period since March 17, 2012, the Veteran's diabetes mellitus was characterized by the need for insulin, restricted diet, and regulation of activities, but episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, or any other complications that would not be compensable if separately evaluated have not been shown. 3. For the period prior to March 17, 2012, the peripheral neuropathy in the Veteran's bilateral upper extremities was characterized by some slight numbness, but with minimal limitation in reflexes or sensory functioning; incomplete paralysis to a "mild" level has not been shown. 4. For the period since March 17, 2012, the peripheral neuropathy in the Veteran's bilateral upper extremities was characterized by pain and reduced sensation, but with normal motor strength; incomplete paralysis to a "moderate" level has not been shown. 5. The peripheral neuropathy in the Veteran's bilateral lower extremities has been characterized by pain, decreased sensation and partial foot drop, but without any motor deficit upon examination; incomplete paralysis that is "moderately severe" in nature has not been shown. 6. For the period since June 1, 2008, the residuals of the Veteran's CVA have been characterized by dysphagia to a moderate degree; all other residuals are either to a noncompensable level or are adequately contemplated by his other service-connected disabilities. 7. For the period since November 26, 2007, the evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus for the period prior to March 27, 2012, and in excess of 40 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, 4.119, Diagnostic Code (DC) 7913 (2013). 2. The criteria for an initial compensable rating for peripheral neuropathy in the right upper extremity for the period prior to March 17, 2012, and in excess of 20 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DCs 8510, 8513, 8515 (2013). 3. The criteria for an initial compensable rating for peripheral neuropathy in the left upper extremity for the period prior to March 17, 2012, and in excess of 20 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DCs 8510, 8513, 8515 (2013). 4. The criteria for a 20 percent rating, but no more, for peripheral neuropathy in the right lower extremity, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520 (2013). 5. The criteria for a 20 percent rating, but no more, for peripheral neuropathy in the left lower extremity, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520 (2013). 6. The criteria for a 30 percent rating, but no more, for dysphagia, as a residual of a CVA for the period since June 1, 2008, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.114, DC 7203, 4.120, 4.123, 4.124, 4.124a, DC 8008 (2013). 7. The criteria for entitlement to a TDIU for the period since November 26, 2007, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist 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, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in July 2007 and in October 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. They also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, 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). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. VA examinations with respect to the issues on appeal were also obtained in March 2008, August 2009 and December 2012. An additional VA opinion was also provided in March 2013. 38 C.F.R. § 3.159(c)(4) (2013). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, they are is predicated on a sufficient understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). Finally, it is noted that this appeal was remanded by the Board in November 2012 in order to schedule the Veteran for VA examinations for all of the disabilities on appeal. As these examinations were conducted in December 2012, the Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, after the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in April 2013. Thus, there is no Stegall violation in this case, and no further notice or assistance 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings In this case, the Veteran submitted a claim in February 2007 seeking increased ratings for his service-connected diabetes mellitus and a number of other related residuals, to include peripheral neuropathy in the extremities and residuals of a CVA. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). On the other hand, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods. Fenderson v. West, 12 Vet. App. 119 (1999). Diabetes Mellitus For the period from March 9, 2007 (the date of his claim) until March 27, 2012, the Veteran was rated at 20 percent for diabetes mellitus, which is warranted when the evidence shows the need for insulin and restricted diet, or the use of an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted where the evidence shows the need for insulin, restricted diet, and regulation of activities. Regulation of activities means that the Veteran has been medically advised to avoid strenuous occupation and recreational activities. Compensable complications of diabetes are to rated separately unless they are part of the criteria used to support a 100 percent rating. 38 C.F.R. § 4.119, DC 7913 (2013). In this regard, the Veteran has also been service-connected for various complications of his diabetes, to include erectile dysfunction, hypertension, peripheral vascular disease and diabetic retinopathy. However, the ratings assigned for these particular secondary complications were not appealed when the ratings were assigned. Therefore, the propriety of the ratings for these complications is not for the Board's consideration at this time. After a review of the evidence, the Board concludes that a rating in excess of 20 percent is not warranted for the Veteran's diabetes mellitus prior to March 27, 2012, as the need for regulation of activities has not been shown. Specifically, at a VA examination in May 2006, his described history of diabetes established that it was not well controlled. However, he did not mention that any need to regulate his activities in order to improve control over his symptoms. The Board's ability to consider the impact of the Veteran's diabetes on his activities was greatly inhibited by the CVA he experienced in November 2007. Nevertheless, despite the symptoms associated with that event not, there was no indication that he needed to regulate his activities in order to control his diabetes. In fact, a review of the physical therapy he underwent following the CVA did not indicate that such activities were negatively impacting his ability to control his blood sugar levels. Most notably, the Veteran underwent a VA examination in August 2009 that was specifically directed towards his diabetes symptoms. On that occasion, he stated that he was on a restricted diet, although he was unable to identify what was specifically restricted, nor could he recall anything special he needed to do in this regard. The VA examiner also observed that he did not have to avoid strenuous activity. Indeed, there were some occasions in his outpatient treatment notes, such as in June 2011, where he stated that he regularly walks at least a mile a day for exercise. In summary, there are a number of disorders that inhibit the Veteran's daily functioning, to include his peripheral vascular disease and the additional limitations resulting from his CVA. However, it is not factually ascertainable during this period that he was required to actually regulate his activities in order to control his diabetes, the criteria required for the next higher disability rating. Therefore, a rating in excess of 20 percent is not warranted for the period prior to March 27, 2012. Next, in an April 2013 rating decision, the Veteran's disability rating for his diabetes mellitus was increased to 40 percent, effective March 27, 2012. In order to warrant the next-higher 60 percent rating, the evidence must show diabetes mellitus requiring insulin, restricted diet and regulation of activities, but also 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. 38 C.F.R. § 4.119, DC 7913 (2013). The evidence does not indicate that a rating in excess of 40 percent is warranted since March 27, 2012. Notably, the Veteran underwent a VA examination at in December 2012 that was specifically directed toward his diabetes symptoms. On that occasion, he stated that he was not able to walk too much or too far or else his blood sugar will drop precipitously. However, he also stated that he has not had to visit his health care provider two times per month or more due to episodes of ketoacidosis or hypoglycemic reactions. Moreover, he has not been hospitalized for episodes of ketoacidosis or hypoglycemia at any time over the past 12 months. This history is consistent with his outpatient treatment records, which do not reflect multiple visits to a health care provider or hospitalizations due to episodes of ketoacidosis or hypoglycemic reactions. Therefore, while the Veteran has shown symptoms such as the need for insulin treatment and regulation of activities, the evidence does not show multiple visits to a health care provider or hospitalizations due to episodes of ketoacidosis or hypoglycemic reactions. Therefore, a rating in excess of 40 percent for his diabetes mellitus is not warranted for the period since March 27, 2012. Next, the Board has also considered whether there are any diabetic symptoms that are not able to be characterized under a separate diagnostic code. As noted previously, the Veteran is also currently service-connected for peripheral neuropathy in the extremities, erectile dysfunction, hypertension, peripheral vascular disease in the lower extremities, diabetic retinopathy and residuals of a CVA. The evidence does not indicate that he has any residual symptoms from his diabetes that are not adequately addressed by his other service connected disorders. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008) . If the criteria under the Rating Schedule reasonably describe a Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the very nature of 38 C.F.R. § 4.119, DC 7913 is so broad in its description that it is virtually impossible that diabetes-related symptoms cannot be contemplated under this diagnostic code. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Peripheral Neuropathy in the Upper Extremities Neurological abnormalities, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, are to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. However, the maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate or, with sciatic nerve involvement moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2013). Prior to March 17, 2012, the Veteran had a 0 percent rating for peripheral neuropathy in each upper extremity under 38 C.F.R. § 4.124a, DC 8515 (2013) (addressing paralysis of the median nerve). Under this diagnostic code, in order to warrant a compensable rating for neurological symptoms in the upper extremities, the evidence must show incomplete paralysis that is "mild" (10 percent), "moderate" (30 percent for the dominant side, 20 percent for the non-dominant side) or "severe" (50 percent for the dominant side, 40 percent for the non-dominant side), or complete paralysis, characterized by the hand being inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances (70 percent for the dominant side, 60 percent for the non-dominant side). 38 C.F.R. § 4.124a, DC 8515 (2013). While this diagnostic code does not define nonspecific words such as "mild," "moderate," or "severe," the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6 (2013). After reviewing the evidence, the Board determines that a compensable rating is not warranted for peripheral neuropathy in the upper extremities prior to March 17, 2012. As an initial matter, there is some evidence that the Veteran was experiencing some weakness on his left side that was attributable to a CVA in November 2007. However, since he was granted a temporary 100 percent disability rating for residuals of a CVA from November 26, 2007 until June 1, 2008, the symptoms observed during this time may be discounted without prejudice to the Veteran. In any event, a VA examination in March 2008 indicates that any peripheral neuropathy in the upper extremities had resolved by this time. Specifically, the examiner noted that no muscle functioning was affected by his peripheral nerves. Sensory functioning was normal to pain and light touch, and a detailed reflex examination was normal (2+) in the biceps, triceps and fingers. No muscle atrophy or abnormal muscle tone was observed. Additionally, in a separate May 2008 evaluation, only minimal weakness was observed in the upper extremities. Subsequent evaluations also indicated that there were only minimal neurological symptoms since 2008. For example, at a subsequent VA examination in August 2009, the muscles in the Veteran's upper extremities were symmetrical with no evidence of atrophy. His strength was also observed to be normal, although his reflexes were observed to be slightly diminished. Additionally, his outpatient treatment notes also indicated only minimal impairment. For example, at one treatment session in September 2009, the motor functioning in his upper extremities was normal, and an EMG evaluation revealed neuropathy in the lower extremities only. At another evaluation in January 2010, the Veteran's motor functioning in the upper extremities was substantially normal and, more recently in July 2011, his reflexes and strength were again normal. Therefore, based on this evidence, the Board determines that it is not factually ascertainable during this period that incomplete paralysis has been shown in the upper extremities, even to a mild level. As a result, a compensable rating is not warranted for the period prior to March 17, 2012. In an April 2013 rating decision, the RO increased the Veteran's disability rating for the peripheral neuropathy to 20 percent for each of his upper extremities, effective March 17, 2012. 38 C.F.R. § 4.124a, DC 8515 (2013). In finding that an increase rating was warranted, the RO specifically found that the Veteran had incomplete paralysis in the upper extremities that was "mild" in nature, and that incomplete paralysis to a "moderate" degree was not shown. The Board notes at that the outset that the rating assigned by the RO appears to have been under the wrong diagnostic code, as DC 8515 contemplates different ratings based on the dominant and non-dominant sides. For example, when the evidence indicates incomplete paralysis that is "moderate" in nature, a 30 percent rating is warranted for the dominant side and a 20 percent rating is warranted for the non-dominant side. Moreover, the RO specifically found that incomplete paralysis to a "moderate" degree had not been shown. Instead, given the text of the April 2013 rating decision, it would appear that RO instead intended to apply DC 8513, which allows for 20 percent ratings for incomplete paralysis that is "mild" in nature, and does not differentiate between dominant and non-dominant sides. Regardless of what diagnostic code is applied, however, a rating in excess of 20 percent is not warranted unless the evidence shows incomplete paralysis that is "moderate" in nature. In this case, the Board determines that a rating in excess of 20 percent is not warranted for either upper extremity since March 17, 2012. In so concluding, the Board relies on the findings of a VA examiner in December 2012. On that occasion, the Veteran stated that he felt "numbness and tingling" in his arms, but also more burning after his CVA in November 2007. He characterized the pain in his upper extremities as "moderate," but the numbness was only "mild" in nature. He also specifically recalled one occasion where he accidentally cut his hand with a knife, but did not feel it. Upon examination, the Veteran exhibited normal muscle strength (5/5) in terms of elbow and wrist movement as well as grip. While it is true that his sensory functioning was substantially absent in his hands, his reflexes were only slightly diminished. Moreover, it does not appear that his diminished sensory functioning has contributed significantly to any paralysis. Notably, while the VA examiner did observe incomplete paralysis in the upper extremities, it was characterized as only "mild" in nature. In fact, there was no paralysis observed in the ulnar nerve at all. Finally, while the Veteran has undergone some outpatient treatment for this period on appeal, none of his treating physicians observed any incomplete paralysis, let alone paralysis that was any more than mild in nature. Therefore, a rating in excess of 20 percent is not warranted for either upper extremity for the period since March 17, 2012. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008) . If the criteria under the Rating Schedule reasonably describe a Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Indeed, through the application of terms such as "mild," "moderate," and "severe" in the rating criteria, the applicable diagnostic codes are broadly inclusive such that it is substantially impossible that his neurological symptoms could not be contemplated under this diagnostic code. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Peripheral Neuropathy in the Lower Extremities Throughout the course of the entire appeal, the Veteran has been assigned a 10 percent rating for the neuropathy in each of his lower extremities under 38 C.F.R. § 4.124a, DC 8520, which is warranted with there is "mild" incomplete paralysis in the sciatic nerve. The Board agrees that DC 8520 is the most applicable diagnostic code for the Veteran's symptoms. In order to warrant a rating in excess of 10 percent, the evidence must show incomplete paralysis that is either "moderate" (20 percent), "mildly severe" (30 percent) or "severe" (60 percent) in nature or, in the alternative, complete paralysis that is characterized by evidence such as the foot dangles and drops, with no active movement possible in the muscles below the knee, and flexion of the knee that is weakened or lost (80 percent). Based on the evidence of record, the Board characterizes the neuropathy in the Veterans lower extremities as "moderate," and concludes that a 20 percent rating is warranted for each lower extremity. For example, at a podiatry evaluation in November 2006, he stated that he experiences poor balance due to his peripheral neuropathy, and that he felt unsteady on his feet. Joint exostosis with loss of strength in dorsiflexion, eversion and inversion was observed. Progressive foot drop was also observed. In a June 2007 evaluation, he stated that he continued to experience chronic burning, although these symptoms were also potentially related to tarsal tunnel syndrome. Next, at a VA examination in March 2008, the examiner noted no impairment of muscle functioning due to peripheral neuropathy. His sensory functioning was normal, and a nerve reflex examination was only slightly impaired in the lower extremities (1+). At another VA examination in August 2009, he complained of chronic lower leg pain, particularly in the left leg and calf. Upon examination, he was able to walk unaided and did not appear unsteady. While his sensory functioning was impaired, particularly at the ankles, there was no motor deficit observed. At an outpatient evaluation in September 2009, he displayed normal motor functioning in the knees and hips, although it was slightly diminished in the left foot. Similar symptoms were observed in November 2009 and January 2010. Most recently, at a VA examination in December 2012, the Veteran stated that he felt as if his feet were cold all of the time, and that he has experienced increased numbness and tingling in his arms. He characterized the pain in his lower extremities as "severe," and the numbness as "moderate." Upon examination, his motor strength was observed to be largely normal at the knee and ankle. However, his sensory functioning was substantially absent. Overall, the examiner concluded that the Veteran had incomplete paralysis that was "mild" in nature. Although the VA examiner in December 2012 indicated that the Veteran's incomplete paralysis was mild, the Board concludes that it is likely worse than mild, given his past observations of progressive foot drop and instability while walking. As such, characterizing his incomplete paralysis as "moderate" appears to better encompass his symptoms. However, the evidence does not indicate that his paralysis should be considered "moderately severe." Notably, his motor strength has been consistently normal and, despite his instability, he is still able to walk unassisted. Therefore, a 20 percent rating, but no more, is warranted for the peripheral neuropathy in the lower extremities. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008) . If the criteria under the Rating Schedule reasonably describe a Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. Specifically, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Indeed, through the application of terms such as "mild," "moderate," and "severe" in the rating criteria, the applicable diagnostic codes are broadly inclusive such that it is substantially impossible that his neurological symptoms could not be contemplated under this diagnostic code. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Residuals of a CVA The evidence establishes that the Veteran experienced a stroke on November 26, 2007. In a March 2008 rating decision, he was assigned a 100 percent disability rating for the period from November 26, 2007 to June 1, 2008 under 38 C.F.R. § 4.124a, DC 8008 (2013). A 10 percent rating, the minimum rating, was assigned since June 1, 2008. 38 C.F.R. § 4.124, DC 8008 (2013) states that a temporary 100 percent shall be assigned for a period of 6 months after the time a cerebral condition occurs. After the completion of 6 months, a minimum 10 percent shall be assigned. However, VA must also consider whether there are any associated neurological abnormalities should also be considered as part of this rating. 38 C.F.R. § 4.120 (2013) (neurological disorders are to be rated in proportion to the impairment of motor functioning under the "appropriate schedule"). After a review of the evidence, the Board concludes that most residuals of the Veteran's CVA are either already addressed by a separate diagnostic code. Clearly, in the six months following his CVA, his symptoms were relatively significant. For example, at an evaluation right after his CVA in November 2007, he exhibited signs of left sided weakness and facial droop. He also exhibited notable diminishment in his speech capabilities. The evidence also indicates that his residuals had improved relatively quickly. For example, at a follow-up evaluation in January 2008, he still exhibited some weakness in the left side of his body and some difficulty in speaking, but he stated that both had improved. By the time he underwent a VA examination in March 2008, there was no acute focal neurological deficit observed. His speech was normal, his gait and coordination was normal and his cranial nerves were grossly intact. At a subsequent VA examination in August 2009, the Veteran stated that there had not been any real change since his last VA examination, and his condition was clinically considered stable. While his motor functioning was observed to be "possibly a little weak," there was no significant difference between the right and left sides. Moreover, the examiner believed any impairment in this regard was due to the Veteran's diabetes. Overall, while the Veteran has experienced a number of disorders related to his CVA, substantially all of them have already been addressed by his already service-connected disorders. Nevertheless, the Board concludes that a 30 percent rating is warranted for his dysphagia, a residual of the Veteran's CVA, as the evidence shows "moderate" stricture of the esophagus. 38 C.F.R. § 4.114, DC 7203 (2013). For example, at his most recent VA examination in December 2012, the Veteran indicated that experienced swallowing problems since his CVA, and has had to undergo a corrective procedure to his esophagus on three occasions. He also mentioned that he has developed an ulcer in the esophageal ring. At a modified barium swallow study in September 2012, he stated that his swallowing functioning worsened approximately one month before. Upon examination, the larynx failed to lift and the epiglottis failed to invert, causing there to be no seal to protect the airway. Therefore, when considering the evidence in its entirety, the Board concludes that the need for multiple esophageal procedures and the inability to swallow in a way that protects the airway constitutes esophageal stricture that is "moderate" in nature. As such, a 30 percent rating is warranted on this basis. On the other hand, the Board has also determined that a rating in excess of 30 percent is not warranted for dysphagia. In order to warrant a rating in excess of 30 percent, the evidence must show stricture of the esophagus that is "severe" in nature that permits the passage of liquids only. In this case, the evidence does not indicate that the Veteran is restricted to only liquid food. For example, at his VA examination in August 2009, the Veteran stated that he has difficulty at times swallowing, depending on the substance. However, his difficulty was mostly with "chunky" foods, and he generally appeared able to swallow solid food. Moreover, at his barium swallow evaluation in September 2012, the examiner determined that the Veteran could benefit by increasing neck muscle strength. However, there was no indication that he was limited to only liquid foods. Therefore, a rating in excess of 30 percent for dysphagia, is not warranted. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008) . If the criteria under the Rating Schedule reasonably describe a Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. Specifically, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Indeed, ratings for residuals of a CVA encompass the application of whatever diagnostic codes are appropriate for the observed symptoms. As such, the applicable diagnostic codes are broadly inclusive such that it is substantially impossible that his neurological symptoms could not be contemplated under this diagnostic code. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2013). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2013). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2013); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In an April 2013 rating decision, the Veteran was granted entitlement to TDIU for the period since March 17, 2012. Based on the evidence of record, however, the Board determines that TDIU is warranted from the time he experienced his CVA on November 26, 2007. As an initial matter, while the Veteran is service connected for a number of disabilities, he did not have a single disability rated at 40 percent or more. However, all disabilities resulting from a common etiology will be considered a "single disability" under 38 C.F.R. § 4.16 (2013). Therefore, all of the Veteran's service-connected disabilities that are related to his diabetes mellitus are considered a "single disability" for TDIU purposes. As the combined rating of these specific disabilities is greater than 40 percent, and since the Veteran's total disability rating has been 70 percent or more, the schedular criteria of 38 C.F.R. § 4.16(a) (2013) have been met. Next, when the RO granted TDIU in an April 2013 rating decision, this was based substantially on a VA examiner's opinion from March 2013, who stated that the Veteran's diabetes, neuropathy, peripheral vascular disease and residuals of a CVA made him unemployable. While this opinion is technically the first evidence of unemployability, it is the service-connected disorders that render the Veteran unemployable, not the opinion. In this case, the Veteran has experienced all of the disorders listed by the VA examiner since November 26, 2007. Moreover, although the ratings for some of these disorders where shown to have worsened at the December 2012 VA examination, his disorders were already sufficiently severe prior to that time such that a TDIU was warranted. Therefore, in view of the VA examiner's opinion that the Veteran was unemployable due to many of his service-connected disabilities, the Board determines that he should be considered unemployable from the time those disabilities actually made him unemployable. Therefore, a TDIU for the period since November 26, 2007, is granted. ORDER A rating in excess of 20 percent for diabetes mellitus for the period prior to March 27, 2012, and in excess of 40 percent thereafter, is denied. An initial compensable rating for peripheral neuropathy in the right upper extremity prior to March 17, 2012, and in excess of 20 percent thereafter, is denied. An initial compensable rating for peripheral neuropathy in the left upper extremity prior to March 17, 2012, and in excess of 20 percent thereafter, is denied. A 20 percent rating, but no more, for peripheral neuropathy in the right lower extremity is granted, subject to the statutes and regulations governing the payment of monetary benefits. A 20 percent rating, but no more, for peripheral neuropathy in the left lower extremity is granted, subject to the statutes and regulations governing the payment of monetary benefits. A 30 percent rating for dysphagia, as a residual of a CVA for the period since June 1, 2008, is granted, subject to the statutes and regulations governing the payment of monetary benefits. A TDIU for the period since November 26, 2007, is granted, subject to the statutes and regulations governing the payment of monetary benefits. ______________________________________________ LESLEY A. REIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs