Citation Nr: 1338064 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-08 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type II, prior to March 21, 2011, and in excess of 20 percent thereafter. 2. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II, prior to March 21, 2011, and in excess of 20 percent thereafter. 3. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity associated with diabetes mellitus, type II, prior to March 21, 2011, and in excess of 20 percent thereafter. 4. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity associated with diabetes mellitus, type II, prior to March 21, 2011, and in excess of 20 percent thereafter. 5. Entitlement to a disability rating in excess of 10 percent for diabetic retinopathy, bilateral, status post pars plana vitrectomy surgery with membrane stripping, associated with diabetes mellitus, type II, prior to December 1, 2008, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified before a Veterans Law Judge at a Travel Board hearing at the RO in Phoenix, Arizona, in June 2010; a transcript is of record. In a September 2013 letter the Veteran was notified that the presiding judge had retired from the Board and was offered the opportunity to be scheduled for another hearing before an active Veteran's Law Judge pursuant to 38 C.F.R. § 20.707. The Veteran did not respond to the letter. In February 2011, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In a February 2012 rating decision, the Veteran was awarded an increased rating of 20 percent effective March 21, 2011 for his service-connected peripheral neuropathy of his right and left upper and lower extremities. The increased ratings constitute a partial grant of benefits, such that the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Also, in the February 2012 rating decision, the RO granted entitlement to individual employability effective May 18, 2007. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. Prior to March 21, 2011, the Veteran's peripheral neuropathy of the right and left lower extremities was manifested by sensory symptoms that may be characterized as no more than mild, incomplete paralysis. 2. As of March 21, 2011, the Veteran's peripheral neuropathy of the right and left lower extremities was manifested by symptoms including lost sensation and some decompensation of movement that may be characterized as no more than moderately severe paralysis. 3. Prior to March 21, 2011, the Veteran's peripheral neuropathy of the right and left upper extremities involved only the median nerve and was manifested by sensory symptoms that may be characterized as no more than mild, incomplete paralysis. 4. As of March 21, 2011, the Veteran's peripheral neuropathy of the right and left upper extremities involved all radicular groups and was manifested by primarily sensory symptoms that may be characterized as no more than mild, incomplete paralysis. 5. Prior to December 1, 2008, the Veteran's diabetic retinopathy manifested with corrected vision no worse than 20/70 in his left eye and 20/25 in his right eye. As of December 1, 2008, his corrected vision was no worse than 20/50 in his left eye and 20/70 in his right eye. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met prior to March 21, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (2013). 2. The criteria for the assignment of a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met prior to March 21, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for the assignment of a disability rating of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity have been met as of March 21, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (2013). 4. The criteria for the assignment of a disability rating of 40 percent, but no higher, for peripheral neuropathy of the left lower extremity have been met as of March 21, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (2013). 5. The criteria for the assignment of a disability rating in excess of 10 percent prior to March 21, 2011 and in excess of 20 percent thereafter for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8515 (2013). 6. The criteria for the assignment of a disability rating in excess of 10 percent prior to March 21, 2011 and in excess of 20 percent thereafter for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8513 (2013). 7. The criteria for the assignment of a disability rating in excess of 10 percent prior to December 1, 2008 and in excess of 30 percent there for diabetic retinopathy, bilateral, status post pars plana vitrectomy surgery with membrane stripping, associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.84a, Diagnostic Codes 6006, 6027 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). A decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Peripheral Neuropathy Lower Extremities The Veteran's peripheral neuropathy of his right and left lower extremities is rated separately under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8520, for incomplete paralysis of the sciatic nerve. Under these guidelines, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Incomplete paralysis of the sciatic nerve which is severe, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve, manifested by symptoms including the foot dangles and drops, no active movement of the muscles below the knee, flexion of the knee weakened or lost, is rated as 80 percent disabling. 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 should be for the mild, or at most, the moderate degree of impairment. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.124a. Also potentially applicable are the diagnostic codes for other tibial and femoral nerves that also address motion of the feet and leg below the knee. 38 C.F.R. § 4.124a. Diagnostic Codes 8521-26. These diagnostic codes provide for similar or less beneficial ratings for incomplete paralysis. Specifically, Diagnostic Code 8526 provides for a 10 percent rating for mild incomplete paralysis of the femoral nerve, a 20 percent rating for moderate incomplete paralysis of the femoral nerve, and a 30 percent rating for severe incomplete paralysis of the femoral nerve. As the relevant lay and medical evidence does not indicate loss of specific motor functions of the lower extremities, the Board concludes that Diagnostic Code 8520 is most applicable because it addresses loss of sensation, motor, and reflex functions and provides for ratings more favorable to the Veteran. The Veteran was afforded a VA examination in August 2007. The Veteran reported experiencing increasing numbness, tingling and burning in his lower extremities. He reported wearing socks at night because of discomfort from his feet rubbing against the sheets and slippers at home to protect his feet from foreign objects. The examiner found the Veteran had normal bulk, tone, and strength. The examiner found diminished sensation to light touch, vibration, and pin prick and diminished sensation to light touch extending to his mid-shins. At a November 2009 private neurology appointment, the Veteran was noted to have a normal neurologic examination except for diffuse hyporeflexia and an upgoing plantar response on the left. He was found to be normal to light touch in the extremities. The Veteran testified at his June 2010 Board hearing that his feet were cold and numb most of the time. He stated that the numbness was progressing past his knees. He reported he feels a sensation with injections in his upper thighs but that it does not feel like a needle going in. He further testified his stability is not as good, giving as an example his need to lean against the wall when standing on one foot to put on his socks. He reported he gets a piercing pain that comes and goes. At an August 2010 private neurology appointment, the Veteran reported numbness and tingling and brief, intermittent pains once daily up to his knees, but primarily in his feet. On examination he was found to have normal bulk, tone, strength, and coordination. He had -2 hyporeflexia in the knees and -4 in the ankles. He was -3 to light touch and pinprick from the knees distally with normal proprioception. At an October 2010 VA epilepsy examination the examiner noted normal muscle tone. He found the Veteran's vibration, touch, and pin prick sensation reduced in the hands to the wrist and the feet to the upper tibia region. Deep tendon reflexes were 1+. Considering all of the medical and lay evidence, the Board finds that with regard to the period prior to March 31, 2011, the Veteran is not entitled to a disability rating in excess of 10 percent. The evidence reflects that the manifestation of the Veteran's peripheral neuropathy during that period was purely sensory. Both the Veteran's private neurologist and the August 2007 and October 2010 VA examiners noted only sensory symptoms, including diminished sensation. The Veteran was consistently noted to have normal muscle tone and strength. No functional limitations were noted as related to the Veteran's peripheral neuropathy. The Veteran himself reported primarily sensory symptoms, noting only some problems with stability, such as standing on one leg to put on a sock. Overall, the Board finds that the evidence does not demonstrate that the Veteran's condition more closely approximated moderate incomplete paralysis of the sciatic nerve as would be required for the next higher, 20 percent, rating. As a preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine does not apply. However, the Board further finds a rating in excess of the currently-awarded 20 percent for the period beginning March 31, 2011 is warranted as giving the Veteran the benefit of the doubt his condition more closely approximates a moderately severe incomplete paralysis of the sciatic nerve. In March 2011 the Veteran underwent a VA peripheral nerves examination. The Veteran reported daily flare-ups of leg pain. He reported progressive weakness, pain, and numbness. The examiner noted the Veteran reported impaired mobility, including having to stop walking after 15 minutes due to fatigue; impaired ability to kneel, squat, and climb stairs; and the loss of ability to run. On examination the examiner found the Veteran was able to move normally about the examination room and mount and dismount the examining table, but had a decompensation of movement for hopping on either foot, heel and toe walking, and heel to shin movement. The examiner found hypoesthesia to light touch and pinprick in a stocking distribution. A May 2011 electromyography (EMG) done at the VA showed the Veteran's tibial motor nerves velocity was below normal and his sural sensory nerves were absent. The Veteran was afforded another VA examination in November 2011. The Veteran reported he has numbness three quarters of the way up his calf. He reported moderate constant pain, intermittent pain, paresthesias and/or dysesthesias and severe numbness in his lower extremities. He reported his feet are constantly numb and cold, requiring protection. He noted having a minor cut he was not aware of. The Veteran was found to have normal strength on knee extension, knee flexion, and ankle plantar flexion and less than normal strength on ankle dorsiflexion. Reflexes were absent in his knee and ankle. The examiner found no muscle atrophy. He had normal sensation in his knee/thigh, decreased sensation in his ankle/lower leg, and no sensation in his foot/toes. He had decreased position sense and vibration sensation of his lower extremities and no cold sensation. The Veteran was noted to have fatigue pain with impact walking, running, and prolonged standing. The VA examiner stated that the Veteran has moderate incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the femoral nerve. At a July 2012 VA neurology consultation, the Veteran was found to have decreased sensation to light touch and vibration below the ankle. To be entitled to the next higher rating, 40 percent, for the period beginning March 21, 2011, the Veteran's peripheral neuropathy must manifest as moderately severe incomplete paralysis of the sciatic nerve. The Board finds that considering the Veteran's report of impaired movement and the findings of the March 2011 and November 2011 VA examiners, his condition does warrant a 40 percent rating for the period beginning March 21, 2011. The evidence shows the Veteran has continued to experience sensory symptoms throughout the time period, including hypoesthesia to light touch and pinprick in a stocking distribution, as found by the March 2011 VA examiner, and a lack of sensation in his feet, decreased sensation in his ankle and lower leg, and decreased position and vibration sense and lack of cold sensation in his lower extremities, as found by the November 2011 VA examiner. The Veteran has also reported his feet are constantly cold and he experiences numbness three quarters of the way up his calf. In addition, the evidence suggests that the Veteran's peripheral neuropathy affects his movement. Specifically, he told the March 2011 VA examiner he has to stop walking after 15 minutes due to fatigue; has an impaired ability to knee, squat, and climb stairs; and has lost the ability to run. On examination the examiner found decompensation of movement for hopping on either foot, heel and toe walking, and heel to shin movement. The November 2011 VA examiner found the Veteran had less than normal strength on ankle dorsiflexion and absent reflexes in his knees and ankles. The Veteran was noted to have fatigue pain with impact walking, running, and prolonged standing. Although the Board notes the November 2011 VA examiner's categorization of the Veteran's incomplete paralysis of the sciatic nerve as moderate, the Board has considered not only that opinion but the symptoms described by the Veteran and shown by the medical evidence. Given the functional impact of the Veteran's peripheral neuropathy as well as his significant sensory symptoms, the Board finds the Veteran's condition more closely approximates moderately severe incomplete paralysis of the sciatic nerve, warranting a 40 percent rating for both his right and left lower extremity. However, a rating greater than 40 percent is not warranted. The evidence does not show the Veteran experiences drop foot or loss of active muscle movement below the knee. Further, no muscle atrophy has been found. Therefore, the Board finds that the Veteran's symptoms do not meet the level of severe incomplete paralysis. Peripheral Neuropathy Upper Extremities The Veteran's peripheral neuropathy of his right and left upper extremities is rated separately under the provisions of 38 C.F.R. § 4.124a. Prior to March 21, 2011, the Veteran's upper extremity peripheral neuropathy was rated 10 percent for each extremity under Diagnostic Code 8599-8515. As of March 21, 2011 his rating was increased to 20 percent for each extremity, rated under Diagnostic Code 8599-8513. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2013). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Id. Under Diagnostic Code 8515, a 10 percent evaluation is warranted for mild incomplete paralysis of the median nerve in either the minor or major limb. A 30 percent evaluation is warranted for moderate incomplete paralysis of the median nerve in the major limb and a 20 percent evaluation for moderate incomplete paralysis of the median nerve in the minor limb. A 50 percent evaluation is warranted for severe incomplete paralysis of the median nerve in the major limb and a 40 percent evaluation for severe incomplete paralysis of the median nerve in the minor limb. 38 C.F.R. § 4.124a (2013). Under Diagnostic Code 8513, a 20 percent evaluation is warranted for mild incomplete paralysis of all radicular groups of either upper extremity. A 40 percent evaluation is warranted for moderate incomplete paralysis of the major limb and a 30 percent evaluation for moderate incomplete paralysis of the minor limb. A 70 percent evaluation is warranted for severe incomplete paralysis of the major limb and a 60 percent evaluation for severe incomplete paralysis of the minor limb. A 90 percent evaluation is warranted for complete paralysis of the major limb and an 80 percent disability rating for complete paralysis of the minor limb. 38 C.F.R. § 4.124a (2013). The Veteran was afforded a VA examination in August 2007. He reported a tingling in his hands that had been progressive over the past few years with no associated weakness. The examiner found the Veteran had normal bulk, tone, and strength. The examiner found diminished sensation to pinprick in the hands up to the level of the proximal interphalangeal joint. At a November 2009 private neurology appointment, the Veteran was noted to have a normal neurologic examination except for diffuse hyporeflexia and an upgoing plantar response on the left. His extremities were found to be normal to light touch. At his June 2010 Board hearing, the Veteran described having numbness and a piercing pain that comes and goes as well as his extremities feeling cold all of the time. He reported his handwriting had deteriorated because he has trouble holding a pen due to a loss of feeling in his fingers. At an October 2010 VA epilepsy examination the examiner noted normal muscle tone. He found the Veteran's vibration, touch, and pin prick sensation reduced in the hands to the wrist. Deep tendon reflexes were 1+. In March 2011 the Veteran underwent a VA peripheral nerves examination. The Veteran reported flare-ups of bilateral arm pain daily and nightly lasting half an hour to one hour. The examiner noted the Veteran had lost manipulative ability in his hands and has difficulty buttoning, using tools, and typing. The examiner found hypoesthesia to light touch and pinprick in a glove distribution. He had 4/5 strength of peripheral muscles in his hands, wrists, elbows, and shoulders. The Veteran was afforded another VA examination in November 2011. The Veteran reported he has numbness halfway up his arms. He reported intermittent pain in both upper extremities as well as mild paresthesias and/or dysesthesias and moderate numbness. On examination, the Veteran was found to have less than normal strength on elbow flexion and extension, wrist flexion and extension, and pinch. He had no movement against resistence in his left grip. The examiner found no muscle atrophy. His reflexes were normal in his biceps and triceps and decreased in his brachioradialis. He had normal sensation in his shoulder area but decreased sensation bilaterally in his inner/outer forearm and hand/fingers. His vibration sensation was normal in his right upper extremity but cold sensation was decreased in both upper extremities. The examiner stated that the Veteran has mild incomplete paralysis of the radial, median, and ulnar nerves bilaterally. At a July 2012 a VA neurology consultation, the Veteran was found to have decreased sensation to light touch and vibration distal to the wrists. The Board finds that the manifestation of the Veteran's upper extremity peripheral neuropathy prior to March 21, 2011 is mild and primarily sensory, and thus he is not entitled to a rating in excess of 10 percent under Diagnostic Code 8515. Specifically, the Veteran was found to have normal strength and no weakness in his hands at his August 2007 VA examination and normal muscle tone at his October 2010 VA examination. No functional symptoms were noted, other than the Veteran's assertion at his Board hearing that holding a pen was difficult due to numbness in his fingers. Even considering that difficulty, the Board finds the Veteran's condition was overall no more than mild. Further, the evidence does not show the Veteran's condition involved all radicular groups prior to March 21, 2011, therefore he is not entitled to a rating under Diagnostic Code 8513. Nor does the evidence show incomplete paralysis of the radial nerve or a radicular group that would allow for a higher rating. The Board further finds a rating in excess of 20 percent as of March 21, 2011 is not warranted. Although the Veteran reported in March 2011 some difficulty with manipulation, such as buttoning, his symptoms remained primarily sensory, and even those sensory symptoms have been mild. On VA examination in November 2011 the Veteran was found to have no muscle atrophy, His muscle strength was 4/5 in his peripheral muscles in March 2011, although he was noted to have no movement against resistence in his left grip in November 2011. Overall, the evidence suggests the Veteran retains use of his upper extremities with some mild sensory deficits. The Board finds that the Veteran's upper extremity peripheral neuropathy is manifest by mild, mostly sensory symptoms and does not more closely approximately moderate incomplete paralysis. As the preponderance of the evidence is against a higher rating for any period, the benefit of the doubt doctrine does not apply. Diabetic Retinopathy A May 2010 rating decision granted the Veteran a 10 percent rating for diabetic retinopathy effective May 18, 2007 and a 30 percent rating effective December 1, 2008 under Diagnostic Code 6006-6027. On November 10, 2008, VA amended the criteria for evaluating eye disabilities. See 73 Fed. Reg. 66,550 (Nov. 10, 2008). The amendments are only effective, however, for claims filed on or after December 10, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. VA regulations prior to December 10, 2008 provide that under 38 C.F.R. § 4.84a, Diagnostic Code 6006, retinitis, in chronic form, is to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. The minimum rating during active pathology is 10 percent. Under the rating criteria in effect prior to December 10, 2008, DC 6027 instructs to rate preoperative cataracts based on impairment of vision. Post operative cataracts are to be rated based on impairment of vision and aphakia. 38 C.F.R. § 4.84a. Loss of visual acuity is in turn rated under DCs 6061-6079. The best distant vision obtainable after best correction by glasses will be the basis of the rating assigned under that diagnostic code. See 38 C.F.R. § 4.75. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/50 and vision in the other eye is correctable to 20/40; (2) when vision in both eyes is correctable to 20/50; (3) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079. A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/50; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6077, 6078. A 30 percent evaluation will be assigned where: (1) corrected visual acuity in both eyes is 20/70; (2) corrected visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye is 5/200 and 20/40 in the other eye; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6070, 6074, 6076, 6077, 6078. A 30 percent rating is prescribed for bilateral or unilateral aphakia under Diagnostic Code 6029. The 30 percent rating is a minimum rating to be applied to the unilateral or bilateral condition and is not to be combined with any other rating for impaired vision. When only one eye is aphakic, the eye having poorer corrected visual acuity will be rated on the basis of its acuity without correction. When both eyes are aphakic, both will be rated on corrected vision. The corrected vision of one or both aphakic eyes will be taken one step worse than the ascertained value, however, not better than 20/70 (6/21). Combined ratings for disabilities of the same eye should not exceed the amount for total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. The Veteran was afforded a VA examination in August 2007. His corrected vision in his left eye was 20/70. In his right eye his corrected vision was 20/25. No visual field defect was noted. Neither lens had been removed. The Veteran had nuclear cataracts in both eyes. In a February 2009 letter, the Veteran's private physician explained that the Veteran has ongoing complications of diabetic retinopathy. He stated that in March 2008 the Veteran's visual acuity was 20/30 +2 in the right eye and 20/40 -1 in the left eye. On December 1, 2008, the Veteran had pars plana vitrectomy surgery with membrane stripping in his left eye. Although his visual acuity improved shortly after surgery, it later dropped to 20/50. The Veteran's private physician suggested the reason could be moderate cataract changes in the left eye. In May 2010 the Veteran's private physician authored another letter regarding the Veteran's condition. He reported that the Veteran's visual acuity with correction was 20/50 -1 in the right eye and 20/40 +1 in the left eye. Central metamorphopsia was noted in both eyes, as well as mild to moderate nuclear sclerotic cataract changes. Private treatment records reflect that in June 2010 the Veteran had a pars plana vitrectomy and membrane stripping in his right eye. The Veteran was afforded a VA examination in March 2011. The Veteran's corrected vision was measured at 20/70 on the right and 20/50 on the left. No visual field defect was noted. The Veteran was found to have nuclear sclerotic cataracts in both eyes. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent prior to December 1, 2008 or a rating in excess of 30 percent thereafter. The evidence does not show a loss of visual acuity during either time period sufficient to warrant a higher rating. Further, the evidence does not show impairment of field of vision, so the diagnostic codes for impairment of field of vision are not applicable. As the preponderance of the evidence is against a higher rating for any period, the benefit of the doubt doctrine does not apply. Extraschedular The Board has also considered whether referral for consideration of an extraschedular rating is warranted for the Veteran's peripheral neuropathy or diabetic retinopathy, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service connected peripheral neuropathy or diabetic retinopathy that would render the schedular criteria inadequate. The Veteran's symptoms are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, the evidence does not show hospitalization due to the Veteran's peripheral neuropathy or diabetic retinopathy. Although the Veteran is unemployed, the Board notes that he is in receipt of individual unemployability benefits effective May 18, 2007. The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in July 2007, prior to the initial adjudication of the increased rating claim on appeal. The letter informed the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Further, the Board finds that the VLJ who conducted the Veteran's June 2010 Board hearing both fully explained the issues on appeal and suggested the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. 3.103(c)(2). The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's disabilities. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's VA treatment records and private treatment records identified by the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA medical examinations in August 2007 and March 2011 in connection with his peripheral neuropathy and diabetic retinopathy claims and another VA examination in November 2011 to evaluate his peripheral neuropathy. The examiners, medical professionals, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary tests. The examiners provided the Board with sufficient information to rate the Veteran's disabilities. Therefore, the Board finds that the examinations are adequate and contain sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER A disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type II, prior to March 21, 2011 is denied. A disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II, prior to March 21, 2011 is denied. A disability rating of 40 percent for peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type II, effective March 21, 2011 is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. A disability rating of 40 percent for peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II, effective March 21, 2011 is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. A disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity associated with diabetes mellitus, type II, prior to March 21, 2011, and in excess of 20 percent thereafter is denied. A disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity associated with diabetes mellitus, type II, prior to March 21, 2011, and in excess of 20 percent thereafter is denied. A disability rating in excess of 10 percent for diabetic retinopathy, bilateral, status post pars plana vitrectomy surgery with membrane stripping, associated with diabetes mellitus, type II, prior to December 1, 2008, and in excess of 30 percent thereafter is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs