Citation Nr: 1605492 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 11-31 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for peripheral neuropathy (PN) of the left lower extremity (LLE). 2. Entitlement to a rating in excess of 20 percent for PN of the right lower extremity (RLE). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held in August 2012 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. As noted in the Board's March 2015 remand, and as repeated here for clarity, in a March 2014 decision, the Board denied the claims for ratings in excess of 20 percent for PN of the LLE and RLE. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2015 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Partial Remand. The Board's decision denying increased ratings was vacated and the Veteran's claims were remanded to the Board. The Order, in pertinent part, called for the claims to be remanded for the Board to consider whether another VA examination should be conducted to address the level of severity of the service-connected bilateral lower extremity PN. In March 2015, the Board remanded the claims on appeal for additional evidentiary development to include a contemporaneous examination. The case has now been returned to the Board for further appellate consideration. In the Board's March 2014 decision, the claims of entitlement to a total disability rating due to individual unemployability (TDIU), entitlement to service connection for a low back disorder, and entitlement to an increased evaluation for diabetes mellitus, were remanded. As pointed out by the Court, those claims have not been subject to a final decision and are, therefore, not before the Court. See Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir. 2005) (holding that a Board remand is not a final decision within the meaning of 38 U.S.C. § 7252(a) (West 2014)). Such remains true at the current time. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The Board recognizes that following the issuance of a July 2015 supplemental statement of the case (SSOC), additional VA treatment records were downloaded to VBMS and Virtual VA in November 2015 without waiver of the right to have the RO initially consider it as the Agency of Original Jurisdiction (AOJ) pursuant to 38 C.F.R. § 20.1304 (2015). The records that are not duplicates are not pertinent to the issues adjudicated herein. See 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The Veteran's PN of the LLE associated with diabetes mellitus, type II, has been productive of neurologic impairment of the LLE of no more than moderate incomplete paralysis of the external popliteal nerve (common peroneal); and is not productive of severe incomplete paralysis, or worse symptoms, of the LLE external popliteal nerve. 2. The Veteran's PN of the RLE associated with diabetes mellitus, type II, has been productive of neurologic impairment of the RLE of no more than moderate incomplete paralysis of the external popliteal nerve (common peroneal); and is not productive of severe incomplete paralysis, or worse symptoms, of the RLE external popliteal nerve. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for PN of the LLE, associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code (DC) 8521 (2015). 2. The criteria for an evaluation in excess of 20 percent for PN of the RLE, associated with diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8521 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and implemented at 38 C.F.R. § 3.159 (2015), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a March 2011 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence he was expected to provide. The Court held that the notice requirements of 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the March 2011 letter mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2014). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements and testimony from the Veteran, his spouse, and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The Board further notes that in response to the Court's January 2015 Order, additional examination was conducted. The resulting examination report, as detailed below, includes medical findings addressing the severity of the PN of the lower extremities. The examiner's opinions were based upon review of the military STRs, VA treatment records, and examination of the Veteran. The appellant testified before a VLJ in August 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2015) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ elicited testimony necessary to determine the nature of the appellant's claims regarding entitlement to ratings in excess of 20 percent for PN of the LLE and RLE. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2015) or identified any prejudice in the conduct of the Board hearing. Indeed, the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. 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) (2015). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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 General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). 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 (2015). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2015). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). PN of the LLE and RLE Evaluation of PN is governed by the Rating Schedule under provisions for evaluation of neurological conditions. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2015). The maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124 (2015). In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2015). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2015). The Veteran's PN of the left and right lower extremities, associated with diabetes mellitus, type II, is evaluated under 38 C.F.R. § 4.124a, DC 8521, paralysis of the external popliteal nerve (common peroneal). Given the anatomical location and neurological function affected by the symptomatology of the two disabilities, that code is the most appropriate for evaluation. Under 38 C.F.R. § 4.124a, DC 8521, paralysis of the external popliteal nerve (common peroneal) warrants a 40 percent evaluation when there is complete paralysis, with foot drop and slight droop of first phalanges of all toes, an inability to dorsiflex the foot, extension of proximal phalanges of toes is lost, abduction is lost, adduction is weakened, and anesthesia covers the entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8521 (2015). Disability ratings are assignable for incomplete paralysis of the external popliteal nerve, based on the degree of severity of symptoms. Id. Under 38 C.F.R. § 4.124a, DC 8521, disability ratings of 20 or 30 percent are assignable for incomplete paralysis of the external popliteal nerve that is productive of moderate or severe disability, respectively. Analysis It is contended that ratings in excess of 20 percent for PN of the LLE and RLE are warranted. When service connection was granted for PN of the bilateral lower extremities upon rating decision in February 2008, it was noted that VA examination of October 2007 showed complaints of numbness and tingling of the feet. The Veteran also experienced aching and a burning sensation in the soles of his feet. These sensations were constant and worse at night. He did not use an assistive device to walk but did wear shoe inserts (which had not been helpful). The Veteran reported weakness and instability in the feet. On examination, he had a normal gait, but he was not able to walk on his heels and toes. There was decreased vibratory sensation in both feet with complete loss of vibratory sensation in most of his toes. Sensation to monofilament was absent in both feet. There was no muscle wasting, paralysis, or atrophy. Range of motion of the ankles was normal. The June 2013 VA examination provided medical findings primarily regarding the upper extremities and is inadequate to address the current claims. As requested in the Board's March 2015 remand, additional examination was conducted. Also added to the record was a VA Disability Benefits Questionnaire dated in March 2015. At that time, it was noted by the physician that the Veteran had to sit frequently to take rest breaks secondary to severe neuropathic pain. He could only walk limited distances or stand for a limited amount of time. The examiner further noted that the Veteran's gait was ataxic, and that there was lower extremity weakness. When examined by VA in June 2015, the Veteran reported PN in the feet. He experienced severe and constant pain, paresthesias/dysthesias, and numbness of the bilateral lower extremities. There was no intermittent pain in either lower extremity. He said that a hot shower relieved his foot pain. He also experienced numbness on the top of his foot. He took numerous medications, to include Gabapentin, Lyrica and oxycodone as needed for his pain. He used a cane to ambulate. On muscle strength testing, bilateral knee extension was 5/5 (normal strength) as was bilateral ankle plantar flexion and dorsiflexion. Deep tendon reflexes were 2+ bilaterally in the knees and ankles. Sensory examination showed normal upper anterior thighs and thigh/knees. Sensation was absent, however, in the lower legs/ankles and foot/toes. Trophic changes included smooth and hairless skin on the feet and ankles. The Veteran's gait was slow, antalgic, and with assist of a cane. Nerve examination of the lower extremities was normal for sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, posterior tibial, anterior crural, internal saphenous, obturator, external cutaneous of the thighs, and ilio-inguinal, nerves. The examiner did not find that the Veteran's PN condition impacted his ability to work. Electromyography (EMG) studies showed abnormal, though inconclusive, results for the lower extremities. It was further noted by the examiner that it was not possible to identify specific nerve involvement in distal PN as symptoms were due to generalized decrease in function of small unmyelinated sensory nerve endings. Following review of the medical evidence, it was the opinion of this examiner that the Veteran's lower extremity restless legs syndrome and limb jerking were medical conditions unrelated to the diabetic PN of the lower extremities. She further stated that the Veteran's subjective report of severe symptoms in the lower extremities was impacted by several comorbidities which were contributing to his bilateral lower extremities, to include unrelated lumbar radiculopathy. The evidence does not show that the Veteran's PN of the LLE associated with diabetes mellitus, type II, or his PN, RLE associated with diabetes mellitus, type II, manifests symptoms productive of severe incomplete paralysis of the external popliteal nerve. As reflected in the June 2015 VA examination report's findings and diagnosis-moderate bilateral peripheral neuropathy-the evidence shows that the disability picture of each of these conditions more nearly approximates moderate incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8521. In this case, the Veteran's complaints are primarily sensory in nature, and as noted above, pursuant to 38 C.F.R. § 4.124a (2015), when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In further discussion, the evidence does not show that either disability associated with diabetes mellitus, type II, more nearly approximates severe incomplete paralysis so as to warrant a rating in excess of 20 percent for either disability. The condition of the LLE and the RLE is not characterized by loss of reflexes or muscle atrophy. The evidence as reflected in the findings of the June 2015 VA examination report shows abnormal sensory examination of the lower legs/ankles/feet and toes. There was smooth, hairless skin of both feet and ankles. His gait was abnormal. Nerve examination, bilaterally, was normal. In light of primarily sensory involvement, though with acknowledged trophic changes, more than moderate incomplete paralysis is not shown. Such a conclusion is consistent with the examiner's findings of no functional loss or impact on ability to work, as well as moderate incomplete paralysis. The level of impairment in the right and left legs has been relatively stable throughout the appeals period, or at least has never been worse than what is warranted for the ratings assigned. Therefore, any application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has not described any unusual or exceptional features associated with his PN, LLE associated with diabetes mellitus, type II, or PN, RLE associated with diabetes mellitus, type II, at any time during the pending claims. The rating criteria are therefore adequate to evaluate these disabilities, and referral for consideration of extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The preponderance of the evidence is against the grant of a disability rating in excess of the existing 20 percent for each disability; there is no doubt to be resolved; and increased ratings are not warranted at any time. ORDER Entitlement to a rating in excess of 20 percent for PN of the LLE is denied. Entitlement to a rating in excess of 20 percent for PN of the RLE is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs