Citation Nr: 1030699 Decision Date: 08/16/10 Archive Date: 08/24/10 DOCKET NO. 05-16 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1958 to September 1963. These matters are before the Board of Veterans' Appeals on appeal from a January 2007 rating decision by the Reno, Nevada Department of Veterans Affairs (VA) Regional Office (RO). In November 2007 and December 2008, these issues were remanded for further development. The issues of whether new and material evidence has been received to reopen a claim of service connection for a colon disorder and entitlement to ratings in excess of 10 percent, each, for peripheral neuropathy of the lower extremities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT At no time during the appeal period were manifestations of the Veteran's peripheral neuropathy or either upper extremity shown to be productive of symptoms/impairment exceeding mild incomplete paralysis of the median nerve. CONCLUSION OF LAW Ratings in excess of 10 percent, each, are not warranted for the Veteran's peripheral neuropathy of the upper extremities. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (Code) 8515 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA 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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (April 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, of 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 such 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). A December 2008 letter provided such notice. The claim was readjudicated after further development was completed (and the Veteran had opportunity to respond). See April 2010 supplemental statement of the case. Regarding VA's duty to assist, all relevant treatment records are associated with the claims file. The Veteran has not identified any pertinent treatment records that are outstanding. He was examined by VA (including in August 2009 and in February 2010, pursuant to the Board's December 2008 remand). The Board finds that the examinations are adequate for rating purposes, as they are based on a review of/familiarity with the pertinent medical history, and the findings included the information necessary for consideration of the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Criteria, Evidence and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. 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) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here as the current ratings assigned encompass the severity of the disabilities shown throughout the appeal period, staged ratings are not indicated. A May 2005 rating decision granted the Veteran service connection for peripheral neuropathy of the upper extremities, rated noncompensable. This appeal stems from a claim for increase received in April 2006. VA treatment records from October 2005 to August 2008 show, in pertinent part, that the Veteran had complaints/was seen for polyneuropathy, with peripheral neuropathy of the upper extremities (and superimposed carpal tunnel syndrome). On November 2006 VA examination, the Veteran reported an increase in numbness and tingling of his hands and forearms that occurs during the night. He indicated that the symptoms may last for two hours at night, and then 10 to 15 minutes during the day. He stated when he experiences the symptoms he is unable to function (i.e., unable to drive, to hold objects, cannot eat well/hold a fork) and feels weak. Physical examination revealed intact motor function C5 to C8 and T1, bilaterally; decreased sensation in the C8 distribution, bilaterally; no thenar atrophy; no paralysis; no joints affected; negative Tinel's sign and negative Phalen's test, bilaterally. Bilateral carpel tunnel syndrome was diagnosed. The examiner noted that such was most likely due to diabetes as a form of neuropathy. On June 2007 VA EMG/NCS of the upper extremities, the impression was: "The electrodiagnostic studies, history and physical exam are most consistent with a median neuropathy at the level of both wrists, suggesting bilateral carpal tunnel syndrome. It appears to be of a least moderate degree bilaterally. The electrodiagnostic findings, history, and physical exam also indicate a sensorimotor axonal neuropathy with mild involvement of both upper extremities." A February 2009 report submitted by the Veteran in support of his claim pertains to the lower extremities. A March 2009 VA EMG/NCS of the left upper and lower extremities shows axonal polyneuropathy, moderately severe, sensory and motor; and superimposed moderately severe CTS at the left wrist at least. On August 2009 VA examination, the Veteran reported weakness and tingling in his upper extremities lasting anywhere from seconds to 2 minutes. He indicated that the left hand was worse. He reported reduced temperature perception to heat in his fingers, but no loss of position recognition. Physical examination revealed muscle strength of 5, bilaterally; no muscle impairment bilaterally; decreased vibration, bilaterally; normal light touch and position sense, bilaterally; no paralysis noted, bilaterally; and bilateral neuritis and neuralgia. The examiner opined that there was mild impairment to employment and activities of daily living (and no impairment to participating in any sports). The examiner noted that the Veteran was mainly impaired in his employment by his lower extremity function. On February 2010 VA examination, the Veteran reported a numb shock feeling bilaterally lasting from 1 second to minutes to hours with tingling and 1 to 3 seconds with pain (he reported that his left arm is more severe). He stated that if he does not rest, the pain and tingling get worse. Physical examination revealed his ability to write showed no tremor (there was a slight tremor in the left hand); right upper extremity revealed normal motor exam with normal tone, no sign of atrophy and 5+ strength; sensory testing revealed normal position sense; vibration testing revealed just a trace decrease in the right thumb, touch was normal; pin testing was normal and two-point discrimination was normal at 5 mm; deep tendon reflexes were 1+ biceps, 1+ triceps, and 1+ finger flexion response; finger-to- nose test was normal; rapid alternating movements were normal; no tremor of the right upper extremity was noted. Left upper extremity revealed strength of 5+; normal tone; no sign of atrophy; normal position; trace decreased vibration; touch pin normal; two-point discrimination normal; deep tendon reflexes were 0 biceps, 0 triceps, 0 brachioradialis, and 1+ finger flexion response; finger-to-nose test was normal, but there was very mild vibratory tremor of the outstretched hand and of the termination of the left finger-to-nose test; however, rapid alternating movements were normal. The examiner noted that the Veteran's upper extremities did not adversely affect his occupational activities. The examiner noted that the Veteran can bowl, although he has not done so due to a left biceps tendon separation (for which service connection is not established). The Veteran's bilateral upper extremity neurological disability is currently rated at 10 percent (for each extremity) under Code 8515 (which pertains to ratings for paralysis of the median nerve). Code 8515 provides that mild incomplete paralysis is rated 10 percent for either extremity; moderate incomplete paralysis is rated 30 percent for the major extremity and 20 percent for the minor; and severe incomplete paralysis is rated 50 percent for the major extremity and 40 percent for the minor. 38 C.F.R. § 4.124a. (The Veteran is right handed.) The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating is to be rated on the scale for the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating for neuritis of the median nerve with no organic changes is that that for moderate incomplete paralysis. 38 C.F.R. § 4.123a. Peripheral neuralgia, characterized usually by a dull and intermittent pain is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Based on the above-summarized evidence, the Board finds that throughout the appeal period symptoms of the Veteran's peripheral neuropathy (with superimposed carpal tunnel) of both upper extremities, have more nearly approximated the criteria for the 10 percent ratings currently assigned. Although he has reported experiencing increasing pain, numbness and tingling (and as noted he is competent to report such symptoms) objective physical examinations have consistently shown no more than mild neuritis/neuralgia of his hands and arms. Significantly, examinations have not revealed such symptoms as constant pain, atrophy, or loss of position sense (and only slight or trace loss of vibratory sensation). Notably, a VA examiner has opined that there is [only] mild impairment in daily living activities, and no impairment as to sports related activities; such findings are consistent with earlier (June 2007) EMG studies/NCS suggesting sensorimotor axonal neuropathy with mild involvement of both upper extremities. The Board has considered whether these claims warrant referral for extraschedular consideration. 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, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations of impairment that are not encompassed by the schedular criteria. 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 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. Here, comparing the manifestations of the Veteran's peripheral neuropathy of the upper extremities with the applicable schedular criteria, the Board finds that the [nature and degree of] disability shown throughout is wholly encompassed by the schedular criteria, and that consequently such criteria are not inadequate. Therefore, referral for consideration of an extraschedular rating is not necessary. Although the Veteran is unemployed, such status is neither shown, nor alleged, to be due to the peripheral neuropathy of the upper extremities (it is suggested that neuropathy of the lower extremities may be implicated). Consequently, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. The preponderance of the evidence is against the claims for ratings in excess of 10 percent for peripheral neuropathy of the upper extremities; accordingly, these claims must be denied. ORDER A rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. A rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs