Citation Nr: 1340837 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-30 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetic neuropathy of the left lower extremity. 2. Entitlement to a disability rating in excess of 10 percent prior to June 27, 2011, and 20 percent therefrom, for diabetic neuropathy of the right lower extremity. 3. Entitlement to a disability rating in excess of 10 percent for diabetic neuropathy of the left upper extremity. 4. Entitlement to an initial disability rating in excess of 10 percent for diabetic neuropathy of the right upper extremity. 5. Entitlement to a total rating by reason of individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1967 to November 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011, a travel board hearing was held before the undersigned in Pittsburgh, Pennsylvania. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in June 2011 so that VA treatment records and a VA examination could be performed. Following the VA examination, the rating for the Veteran's right lower extremity peripheral neuropathy was increased to 20 percent disabling, effective June 27, 2011, the date of the scheduled VA examination. The Veteran has expressed disagreement with the effective date and continues to express dissatisfaction with the 20 percent rating. The claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The case has now been returned for further appellate consideration. By rating decision dated in July 2013, the RO granted service connection for peripheral neuropathy of the right upper extremity, rated 10 percent disabling, and continued a 10 percent evaluation for peripheral neuropathy of the left upper extremity. The Veteran, in correspondence dated in September 2013, submitted a notice of disagreement to the evaluations. As noted below, a statement of the case must be issued in response to this notice of disagreement. Manlincon v. West, 12 Vet. App. 238 (1999). The issue of entitlement to a TDIU is also remanded to the RO via the Appeals Management Center (AMC) in Washington, DC, for further action, as detailed below. The July 2013 rating decision is not clear as to the rating or ratings assigned to left upper extremity diabetic neuropathy. The rating decision code sheet indicates a rating of 10 percent prior to August 9, 2012 and 20 percent therefrom. The rating decision narrative and notice letter to the Veteran, however, indicate that the current 10 percent rating was being continued. This matter must be clarified by the RO/AMC and any appropriate action taken. The issues of increased ratings for bilateral upper extremity diabetic neuropathy and TDIU are REMANDED to the RO via the AMC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's left lower extremity diabetic neuropathy has been primarily manifested by decreased sensation, an antalgic gait, pain, numbness, and tingling; without evidence of loss of muscle strength or muscle atrophy; which is productive of no more than moderate incomplete paralysis. 2. Prior to June 27, 2011, the Veteran's right lower extremity diabetic neuropathy has been primarily manifested by decreased sensation, pain, numbness, and tingling; without evidence of loss of muscle strength or muscle atrophy; which is productive of no more than mild incomplete paralysis. 3. From June 27, 2011, the Veteran's right lower extremity diabetic neuropathy has been primarily manifested by decreased sensation, pain, numbness, and tingling; without evidence of loss of muscle strength or muscle atrophy; which is productive of no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for diabetic peripheral neuropathy of the left lower extremity have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8525 (2013). 2. The criteria for an increased rating in excess of 10 percent for diabetic peripheral neuropathy of the right lower extremity were not met prior to June 27, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Code 8525 (2013). 3. The criteria for an increased rating in excess of 20 percent for diabetic peripheral neuropathy of the right lower extremity have not been met from June 27, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Code 8525 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). June 2007, July 2008, and March 2009 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The Veteran has had ample opportunity to respond or supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations, most recently pursuant to remand by the Board in June 2011. The Board finds that the examination obtained is adequate. The examination was provided by a qualified medical professional and findings and conclusions were predicated on a full reading of all available records. Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2013). Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and VirtualVA e folder, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Bilateral Lower Extremity Peripheral Neuropathy The Veteran contends that the peripheral neuropathy of each of his lower extremities is more disabling than currently evaluated. In testimony before the undersigned at the travel board hearing in March 2011, he stated that his disability had worsened and, while he was able to continue to work, it now interfered with his ability to function at work. Service connection for peripheral neuropathy of the right lower extremity was granted as secondary to service-connected diabetes mellitus by the RO in a September 2005 rating decision. The 10 percent disability rating was awarded under the provisions of Code 8525. Service connection for peripheral neuropathy of the left lower extremity was granted as secondary to service-connected diabetes mellitus by the RO in an April 2006 rating decision, evaluated in combination with diabetes mellitus. A separate 10 percent disability rating was awarded under the provisions of Code 8525 by rating decision in October 2006. The rating was increased to 20 percent disabling by rating decision dated in August 2007. On VA examination in July 2006, the Veteran reported that neurologic symptoms in both lower extremities had begun 6 to 12 months earlier. He stated that he had a tooth-ache-type pain around the ankles, between the ankles and midway up the shin bilaterally. This occurred intermittently on a daily basis. The pain lasted between 5 and 30 minutes. He did not have loss of function of the feet and was able to walk. He had minimal function and had to rest when he had a flare-up. He was not on medication. He had no known exacerbating factors. Alleviating factors included sitting down to rest. With flare-ups, he experienced weakness, fatigue and pain. On physical examination, he had no clubbing, cyanosis, or edema. There was good hair growth of the lower extremities, which were warm to the touch. Monofilament testing was adequate to the plantar surfaces of the feet, bilaterally. Toes were downgoing. Position sense was within normal limits. There were no active lesions on the feet. Lower extremity muscle strength was 5/5 throughout. Tandem gait was within normal limits. He had a mild antalgic gait. Deep tendon reflexes were 1+ at the knees. Patellar reflexes were slightly decreased on the right and 1+ on the left. The pertinent diagnosis was neuropathy of both lower extremities. In a January 2007 report of a private examination, the Veteran reported that he had pain that had begun spontaneously in the left lower extremity. It was distal, unilateral, and mostly over the anterior aspect of the leg and foot. It covered both territories of the superficial and deep peroneal nerves. It was characterized by an ache, but not aggravated with Valsalva maneuver. On examination, it was noted that the Veteran wore special diabetic shoes. He had decreased sensation to vibrations and pinprick in both lower extremities, more so on the left than the right. Gait was normal. Deep tendon reflexes were absent in the patellar and Achilles; the plantars were neutral; and there was no clonus. The impression was peripheral neuropathy secondary to diabetes mellitus. On June 2007 VA examination in June 2007, the Veteran stated that he continued to have symptoms of pain, numbness, and tingling of the left foot and lower leg. He had numbness and tingling to the foot just above the ankle and pain in the dorsal surface of the foot. He stated that walking a couple of blocks would increase the pain in the left foot to a level of between 7 and 8. Standing 1/2 hour also did this. While sitting at rest, he had pain to level 8, with the numbness and tingling that came and went with prolonged walking or standing, or with no specific precipitating or aggravating factor. Cold weather increased his symptoms by approximately 10 percent. To relieve the pain, numbness, and tingling, he had been prescribed the medication Gabapentin. This reduced the pain by 10 to 20 percent and the numbness and tingling by 30 to 40 percent. He reported flare-ups four to five days out of seven. These lasted to between a few hours to all day. He denied redness, in the foot or lower leg. He stated that the foot and lower leg were of normal temperature, without tenderness in the foot or lower leg. He reported stiffness in the left forefoot. He reported weakness and instability that he described as losing his balance. He used a cane for stability. On physical examination, the Veteran walked with an antalgic gait, favoring his left leg. He had difficulty walking on his toes, but was able to walk on his heels. He was slightly unsteady with tandem walking. He had tenderness with palpation in the toes, the Achilles tendon area, and the anterior ankle. Palpating the foot and ankle increased the tingling sensation. There was no redness, warmth, or effusion in the left foot or ankle. Strength with dorsiflexion and plantar flexion was 5/5. Sensation was decreased to monofilament and vibration when compared to the hands. He did have hair on the dorsal surface of the foot and toes. He was unable to elicit a patellar or Achilles tendon reflex. He did have greater shoe wear on the left heel. The Veteran did have increased pain radiating up the left shin with repetitive range of motion, but no increased weakness, decreased endurance, or incoordination following repetitive range of motion. He had no change of degrees of range of motion following repetitive motion. He was able to wiggle the toes of both feet without pain or stiffness. He reported numbness, tingling and pain in the left foot. The diagnosis was peripheral neuropathy of the left lower extremity. On April 2008 VA examination of the lower extremities, the joints were cool to the touch and there was no erythema or increased temperature. The Veteran reported pain of the left lower extremity that he described as 3/10, with all initial movement causing pain. There was slight pain on deep palpation of the dorsal portion of the foot, but no pain on deep palpation of the shin. Temperature and color were normal. The Veteran could wiggle his toes freely without pain. Monofilament revealed that the feet were sensate. Vibratory sensation was also intact. There was no muscle wasting or atrophy noted. There was no paralysis, neuritis, or neuralgia noted. The Achilles tendon remained midline both weightbearing and nonweightbearing. The diagnosis was peripheral neuropathy of both feet, with symptoms of burning, numbness, and tingling. On March 2009 VA examination, it was noted that the Veteran continued to use the medication Gabapentin, with some effect. He complained of paresthesia, tingling, numbness, and pain of the lower extremities. His tingling was chronic and constant, with no alleviating or precipitating factors. He wore custom made diabetic shoes. He denied any other sensory abnormalities to cold or hot or otherwise. He used a cane, but was able to sit frequently while working as a vocational teacher, although he also had to stand frequently for long periods while teaching. The Veteran denied any effects on his activities of daily living. On physical examination, he walked with a cane with a normal gait and no unsteadiness. He had no clubbing, cyanosis or peripheral edema. The joints were cool to the touch and hair growth was good on the feet and toes. There was no functional impairment and no paralysis, neuritis, or neuralgia. There was no muscle wasting or atrophy noted. Motor strength was 5/5, bilaterally. The Veteran complained of pain on palpation of the plantar aspect of each foot and was able to stand on his heels and toes with complaints of pain. Monofilament examination revealed good sensatability to the lower extremities bilaterally, good vibratory sense upon bony prominences and intact reflexes. Babinski sign was negative. The diagnosis was peripheral neuropathy of both lower extremities. An examination was conducted by VA on June 27, 2011. At that time, the Veteran stated that his peripheral neuropathy was worse with prolonged standing. He stated that, at times, this caused loss of function. For example, while teaching standing on a concrete floor, he had increased pain that required him to sit. This was described as sharp to both shins and ankles and tingling numbness to the dorsal surface of the foot. He had weakness and fatigue with prolonged standing. He continued to wear diabetic shoes and socks, which provided some relief to heel pain. At night, he had a throbbing to the feet, with coldness and tightness. He had been issued Jobst stockings for vascular insufficiency. When seen by podiatry one month earlier, it was noted that the Veteran had normal skin temperature to touch, adequate pulses and intact sensory testing to monofilament. At that time, there was no reported pain on palpation and muscle strength was 5/5. The Veteran denied any effects on his activities of daily living, but did report unsteadiness of gait. On physical examination, he used a cane in his right hand and walked with a mild antalgic gait. There was no clubbing, cyanosis, or edema of the lower extremities. Hair growth of the feet and toes was diminished, but present. Skin temperature was normal to touch. There was no pain on motion of the toes and no joint involvement. There was slight tingling to the toes with movement of the toes. There was no muscle atrophy, weakness, paralysis, or contractures. Motor control and muscle tone were normal. Lower extremity muscle strength was 5/5 and equal bilaterally. Reflexes were all within normal limits. The feet showed no active lesions and there was no abnormal callus formation. Monofilament testing was adequate to the plantar surfaces, bilaterally, and the toes were downgoing. Romberg sign was normal. There was slight imbalance with tandem gait. Position sense was within normal limits. It was reported that electromyographic and nerve conduction velocity studies performed in November 2010 showed no evidence of peripheral polyneuropathy, but that this was not significant for detection of the small unmyelinated fibers that are first affected by diabetic polyneuropathy. The Veteran was clinically symptomatic for diagnosed diabetic peripheral neuropathy of both lower extremities. Diagnostic Code 8525 provides ratings for paralysis of the posterior tibial nerve. Diagnostic Code 8525 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 10 percent disabling; and severe incomplete paralysis is rated 20 percent disabling. Complete paralysis of the posterior tibial nerve, paralysis of all muscles of sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired, is rated 30 percent disabling. Diagnostic Code 8625 provides a rating for neuritis of the posterior tibial nerve. Diagnostic Code 8725 provides a rating for neuralgia of the posterior tibial nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Regarding the Veteran's left lower extremity, it is noted that throughout the appeal, his left lower extremity diabetic neuropathy has been primarily manifested by decreased sensation, which causes an unsteady, antalgic gait. He has additional complaints of pain, numbness, and tingling sensations, but there has been no loss of muscle strength or muscle atrophy noted. For a rating in excess of the assigned 20 percent, complete paralysis of all the muscles of the sole of the foot would have to be demonstrated. The Board has reviewed the entire evidence of record and cannot find evidence of complete paralysis of the nerves of the Veteran's left foot. Significantly, electrodiagnostic testing in 2010 showed no evidence of neuropathy. While this is not diagnostic of normal nerves, it does indicate that complete paralysis is not demonstrated. As such, a rating in excess of the currently assigned 20 percent is not warranted. Regarding the Veteran's right foot, prior to June 27, 2011, there is no evidence of more than mild paralysis of the right lower extremity in the record. The disability is manifested by decreased sensation and pain, but no evidence of muscle wasting or atrophy. Muscle strength has been 5/5 on all examinations. While increased disability in the right lower extremity was found to have existed at the time of the June 2011 VA examination, only mild impairment is shown prior to that time. As with the left lower extremity, as of June 2011, the right lower extremity diabetic neuropathy was primarily manifested with decreased sensation and complaints of pain, tingling and numbness. Complete paralysis has not been demonstrated. As with the left lower extremity, the electrodiagnostic testing in 2010 showing no evidence of neuropathy does indicate that complete paralysis is not demonstrated. As such, there is no basis for a rating in excess of 10 percent prior to June 27, 2011, or in excess of 20 percent thereafter. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claims for increased ratings for diabetic peripheral neuropathy of each foot, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations. The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's left and right lower extremity peripheral neuropathy directly corresponds to mild or moderate incomplete paralysis of each lower extremity, without a demonstration of complete paralysis at any time during the appeal process. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's bilateral diabetic peripheral neuropathy, and no referral for an extraschedular rating is required. ORDER A disability rating in excess of 20 percent for diabetic neuropathy of the left lower extremity is denied. A disability rating in excess of 10 percent prior to June 27, 2011, and 20 percent therefrom for diabetic neuropathy of the right lower extremity is denied. REMAND Regarding the claims for a higher evaluation for diabetic peripheral neuropathy of the upper extremities, the Veteran has submitted a Notice of Disagreement with the July 2013 rating decision that continued or assigned 10 percent ratings for each upper extremity. The Board notes that it is unclear whether an increase to 20 percent for left upper extremity was assigned. This must be clarified. As a consequence, he has sought to appeal the current rating for these disabilities. To date, he has not received a statement of the case related to these issues, so these claims must be remanded for compliance with Manlincon. See Manlincon, 12 Vet. App. 238. Finally, it is noted that the Veteran's combined service-connected disability rating is 70 percent. Recently received correspondence from the Veteran, dated in September 2013, shows that he took early retirement as a result of his diabetic peripheral neuropathy. Thus, it appears that he has contended that he could not secure and follow a substantially gainful occupation, by reason of service-connected disability. Such evidence in the record suggesting unemployability constitutes an informal claim for TDIU. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations"). See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). Accordingly, the case is REMANDED for the following action: 1. The proper rating or ratings for left upper extremity diabetic neuropathy should be clarified, based on the contradictory information in the July 2013 rating decision and code sheet. All appropriate action must be taken in this regard. 2. Then, the RO/AMC should take all necessary action to develop and adjudicate the issue of TDIU. 3. The Veteran must be provided a Statement of the Case on the issues of entitlement to increased ratings for diabetic peripheral neuropathy of each upper extremity and, if denied, the issue of entitlement to TDIU. If and only if, the Veteran files a timely substantive appeal on the increased rating issues, should they be returned to the Board. The Veteran need take no further action to perfect his appeal as to the TDIU issue, as it is considered part and parcel of the increased rating issues decided in this decision See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. 238; Rice, 22 Vet. App. 447. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs