Citation Nr: 1007365 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-15 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the left upper extremity. 2. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the right upper extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for peripheral neuropathy of the bilateral upper extremities and assigned 20 percent ratings effective April 4, 2003. This matter was remanded by the Board in November 2008 in order to schedule the Veteran for a VA examination, which was conducted in August 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During the period since April 4, 2003, the Veteran's left upper extremity peripheral neuropathy has been manifested by decreased sensation, normal strength on examination, but an inability to grip objects requiring fine motors skills, , all of which is productive of "moderate" incomplete paralysis. 2. During the period since April 4, 2003, the Veteran's right upper extremity peripheral neuropathy has been manifested by decreased ; sensation, normal strength on examination, but an inability to grip objects requiring fine motors skills, all of which is productive of "moderate" incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for peripheral neuropathy of the left upper extremity (non-dominant upper extremity) are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2009). 2. The criteria for a 40 percent rating for peripheral neuropathy of the right upper extremity (dominant upper extremity) are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. No claims of prejudice have been made in this case. Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained all available records, including service records and records of post service treatment. Additionally, the Veteran was afforded a VA examination in response to his claims. The Veteran's representative has contended that the most recent VA examination conducted in August 2009 was inadequate and inaccurate. The representative contends that the examiner should have acknowledged the Board's decision to grant special monthly compensation based on the need for regular aid and attendance, based in part on the Veteran's inability to dispense medications, button clothing, or make meals. The examiner did report that she had reviewed the claims folder and made reference to some evidence contained in that folder. She also noted the reports that he had difficulty buttoning shirts, taking medications, and brushing his hair with general reports of difficulty gripping. While she did not specifically mention the grant of aid and attendance benefits (which was premised on multiple service connected disabilities), she accurately described his limitations as reported in the record, and provided her own examination to evaluate current functioning. Her findings were consistent with those on other VA examinations. There is no evidence that she misstated her findings. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Peripheral Neuropathy of the Bilateral Upper Extremities Increased Rating Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Diagnostic Criteria The Veteran's peripheral neuropathy is currently rated under Diagnostic Code 8513, for neurological impairment of all radicular groups of the upper extremities. This Code provides a 20 percent disability rating for mild incomplete paralysis of all radicular groups involving either upper extremity. A 30 percent rating is provided for moderate incomplete paralysis involving the non-dominant upper extremity and a 40 percent rating for moderate incomplete paralysis involving the dominant upper extremity. A 60 percent rating (non- dominant) and a 70 percent rating (dominant) requires severe incomplete paralysis. An 80 percent rating (non-dominant) and a 90 percent rating (dominant) requires complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2009). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124(a). 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. See nerve involved for diagnostic code number and rating. 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, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2009). 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. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2009). The words "slight," "moderate," and "severe", as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. Service treatment records indicate the Veteran is right- handed. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Background In August 2006, the Veteran had a VA examination for aid and attendance purposes. The Veteran reported that he had numbness in all his fingertips and thumbs. In the past, he reported he could not hold a pencil or write his name, but had undergone physical therapy and was exercising his fingers. He stated he was not able to perform activities of daily living with his hands. The examiner noted the Veteran had a good grip, full mobility of his fingers, and was able to make a good fist. The examiner noted the Veteran's wife had to bathe him, wash his hair, and drive him where he needed to go. She would bring him his food and help him dress. The Veteran stated he could not lift anything, like groceries, so his wife had to do it for him. The examiner stated the Veteran had decreased soft touch and monofilament in all fingertips and thumb tips. Upper extremities had near full range of motion of all major involved joints, including normal wrist range of motion bilaterally and forward flexion and extension of all fingers. Muscle strength was 5/5 in the upper extremities. The examiner diagnosed diabetic peripheral neuropathy of all four extremities, mild, involving only the fingertips of both hands. In May 2007, the Veteran underwent a VA examination for aid and attendance purposes. The Veteran was able to drive part of the way to the examination. The Veteran reported being unable to button his shirts, and needed assistance to put on his shoes. He could not cook for himself, but he could feed himself. He was able to shave himself. The Veteran reported that he did needlework. On examination, the examiner reported that the Veteran could not button clothing on account of diabetic neuropathy. Upper extremity muscles strength was +5/5. The examiner noted that the Veteran had normal sensation to light touch in the upper and lower extremities. In an August 2008 attachment to a medical statement in consideration of aid and attendance completed by Dr. WHS, the Veteran's wife reported the Veteran required assistance with showering, could attend to most of his dressing, but could not put on his shoes and socks. The Veteran was able to shave himself, but had to sit in order to do so. He was able to feed himself. He was also able to drive, but only for short distances. At the VA examination in August 2009, the veteran reported numbness and tingling in all fingertips extending about halfway down the digits. He reported that he took no medication and did not have a splint or brace. On a day to day basis, he had difficulty gripping, buttoning shirts, taking his medications, combing his hair, and operating zippers, all of which his wife assisted him with. He was additionally unable to drive. On examination, the upper extremities were pink, warm, and dry. Radial pulses were 2+ and strength was 5/5. Bilateral grip strength was strong and equal. Sensation was decreased as he was unable to differentiate sharp and dull. The Veteran denied any paralysis, neuritis, or neuralgia. The examiner diagnosed peripheral neuropathy of the upper extremities with no evidence of paralysis, neuritis, or neuralgia. Analysis The Veteran's disability picture consists of the inability to grip objects requiring fine motor skills, to include fastening buttons and operating zippers, is additionally reported to be unable to handle his own medication, due to lack of the ability to grasp small objects. The Board notes that the August 2009 VA examiner, like previous examiners found normal muscle strength as well as normal grip strength. The Veteran's functional difficulties appear to have been attributed to the abnormal sensation. Given the functional impairments, and not withstanding the earlier finding of mild disability, the evidence favors a conclusion that the disability in each upper extremity approximates moderate incomplete paralysis. Although the examiner did not state whether the Veteran's condition was "moderate" or "severe," the VA examiner stated her opinion in sufficient terms to indicate that she did not find a severe disability, in that there was no reported abnormality other than the decreased sensation and she found no evidence of paralysis, neuritis, or neuralgia. Like other examiners she found a wholly sensory impairment, which as noted above, it to be rated as at most moderate. 38 C.F.R. §§ 4.123, 4.124, 4.124a. The Board considered whether a higher rating for this disability is warranted under any other diagnostic code but has found none. A higher rating under alternate Diagnostic Codes 8511-8519 is not warranted as there is no medical evidence of complete paralysis and the disability picture due solely to the upper extremities more approximates the "moderate" criteria. A "severe" case would require a greater degree of significant clinical findings to support increased ratings for the upper extremities. By this, the Veteran would have to show near-complete paralysis of these extremities, which is not supported by the fact that the Veteran still has range of motion of his arms, and can operate a motorized scooter. The Board also considered whether the Veteran is entitled to a higher rating of 70 percent under Diagnostic Code 5125, for loss of use of the hands. However, the Veteran has not reported, and the evidence does not show, that he has completely lost all functional use of his hands, with no effective function remaining other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance. See 38 C.F.R. § 4.71a, Diagnostic Code 5125. Accordingly, the Board finds that the evidence of record presents a disability picture which more nearly approximates the criteria for a 40 percent rating for a right upper extremity (dominant) disability due to peripheral neuropathy and a rating of 30 percent for a left upper extremity (non- dominant) disability due to peripheral neuropathy for the entire appellate period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 8513. Extra-Schedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2009). 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 the service- connected disability are inadequate. 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). Under the approach prescribed by VA, if the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran'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"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's disability is manifested by moderate symptoms. These symptoms are contemplated by the rating criteria. 38 C.F.R. §§ 4.123, 4.124, 4.124(a) (2009). In the absence of evidence presenting "exceptional" circumstances, referral of the claim is not warranted for consideration of an extraschedular rating; the Veteran's disability is appropriately rated under the schedular criteria. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran was granted a 100 percent rating in November 1997. As the Veteran has been in receipt of a 100 percent rating throughout the appeal period, further consideration of TDIU is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 30 percent rating for moderate incomplete paralysis of the left upper extremity radicular groups is granted. Entitlement to a 40 percent rating for moderate incomplete paralysis of the left upper extremity radicular groups is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs