Citation Nr: 1209040 Decision Date: 03/09/12 Archive Date: 03/19/12 DOCKET NO. 09-27 789A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a compensable disability rating for peripheral neuropathy of the right upper extremity. 2. Entitlement to a compensable disability rating for peripheral neuropathy of the left upper extremity. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which continued a noncompensable disability rating for peripheral neuropathy of the left and right upper extremities. The Veteran filed a notice of disagreement with this determination in May 2008, and timely perfected his appeal in August 2009. The Board notes that, while the Veteran filed his claim with the RO in Indianapolis, Indiana, the rating decision and June 2009 Statement of the Case were issued by the Louisville, Kentucky RO. The Veteran was afforded a Travel Board Hearing before the undersigned Acting Veterans Law Judge in August 2010. A written transcript of this hearing was prepared and incorporated into the evidence of record. In July 2011, the Board referred this case for medical expert opinion with the Veterans Health Administration (VHA). In August 2011, the Board received the VHA opinion. The Veteran was provided a copy of this opinion with an opportunity to present further argument and/or evidence. Referred Issue As a final introductory matter, it does not appear that the issue of entitlement to service connection for carpal tunnel syndrome as secondary to service-connected diabetes mellitus has been addressed by the agency of original jurisdiction (AOJ). In the November 2011 Informal Hearing Presentation, the Veteran's representative asserted a claim of secondary service connection of the Veteran's carpal tunnel syndrome. The Board notes, in particular, the positive nexus opinion rendered by the August 2011 VHA Chief of Neurological Services opinion. As the AOJ has not yet adjudicated this issue, it is referred back to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the left upper extremity was not manifested by objective symptomatology; mild impairment was not shown. 2. The Veteran's peripheral neuropathy of the right upper extremity was not manifested by objective symptomatology; mild impairment was not shown. 3. The competent and probative medical evidence of record does not show that the Veteran's service-connected peripheral neuropathy of the upper right and left extremities are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8599-8513 (2011). 2. The criteria for a compensable disability rating for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8599-8513 (2011). 3. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist The VA has a duty 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (the Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the RO sent correspondence in May 2007 and February 2009, that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letter informed the Veteran of how effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits, such as obtaining medical records and providing the Veteran with VA examinations in June 2007 and May 2009. Additionally, in July 2011, the Board requested a medical opinion through a Veterans Heath Administration (VHA) directive to determine any current upper extremity neurological impairment attributable to diabetic neuropathy. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Veteran has not indicated that he has received additional treatment for his service-connected peripheral neuropathy of the upper extremities. The Board thus concludes that there are no outstanding treatment records. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. The Merits of the Claims, on a Schedular Basis The Veteran is seeking an increased disability rating for his service-connected peripheral neuropathy of the upper left and right extremities, which are currently evaluated as noncompensably disabling under 38 C.F.R. § 4.124a (2011). Governing Law and Regulations Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2011). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins one year before the Veteran filed his claim (March 2007) for increased rating, and continues to the present time. The Veteran's service-connected peripheral neuropathy of the left and right upper extremities are currently rated as noncompensable pursuant to 38 C.F.R. § 4.124a, 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 (2011). 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 8513, for the major upper extremity, a 20 percent evaluation is warranted for mild incomplete paralysis of the either upper extremity. A 40 percent evaluation is warranted for moderate incomplete paralysis of the major hand, and a 30 percent for moderate incomplete paralysis of the minor limb. A 70 percent rating requires severe incomplete paralysis of the major upper extremity and a 60 percent disability rating is assigned for severe incomplete paralysis of the minor limb. A 90 percent disability rating is warranted for complete paralysis of the major upper extremity and an 80 percent disability rating for complete paralysis of the minor limb. See 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2011). A note in the Rating Schedule pertaining to 'Diseases of the Peripheral Nerves' provides that 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 bilateral, combine with application of the bilateral factor. Id. As previously noted, the words such as 'mild,' 'moderate,' and 'severe' are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are 'equitable and just.' 38 C.F.R. § 4.6 (2011). 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 (2011). Similarly, 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 (2011). See nerve involved for diagnostic code number and rating. Analysis The Veteran contends that he is entitled to a compensable disability rating for his service-connected peripheral neuropathy of the upper left and right extremities. VA outpatient treatment records show complaints of hand numbness. Additionally, the Veteran reported joint pain in his hands and right shoulder. A January 2010 VA treatment record noted that the Veteran continued to have bilateral hand numbness and his electromyography (EMG) showed bilateral median nerve neuropathy. The Veteran was afforded a VA examination in June 2007. The Veteran complained of aching in the arms. The Veteran's muscle strength was four out of five, and his hand exam and pulses were normal. The examiner noted normal strength and reflexes in the upper extremities. Additionally, the Veteran's sensory testing was noted as abnormal to monofilament, but did not document where the abnormality was found. The VA examiner diagnosed the Veteran with diabetic polyneuropathy. The Veteran was afforded another VA examination in May 2009. The Veteran complained of paresthesias and increased sensation in the upper extremities. Additionally, the Veteran reported such symptoms as tingling and burning. The extremity examination showed normal temperature, color, and radial pulse of the right and left upper extremities. Upon physical examination, the Veteran was noted to have normal strength, position sense, and reflexes in the upper extremities. Additionally, vibration, pain, and light touch sensation were noted as diminished. Furthermore, the examiner noted an EMG study that found normal motor conduction velocities in all extremities. Moreover, sensory potentials (sural and peroneal) could not be elicited in the legs, but were normal in the arms. Additionally, distal median latencies were delayed in both hands. The electrodiagnostic study was also consistent with mild to moderate carpel tunnel syndrome (right median motor and median sensory demylinating neuropathy). However, there was no electrodiagnostic evidence of diffuse polyneuropathy in the bilateral upper extremities. The examiner diagnosed the Veteran with diabetic polyneuropathy in the lower extremities and right carpal tunnel syndrome. A nerve conduction study was performed on the Veteran in September 2009. The test revealed motor nerve conduction velocities in the bilateral median and ulnar nerves to be normal. The Veteran's distal median latencies were delayed but amplitudes were normal. The reviewers impression was that the Veteran's bilateral upper extremity nerve conduction was abnormal, indicating bilateral median nerve neuropathy at the wrists (carpal tunnel syndrome), left mild to moderate and the right moderately severe. The Veteran was afforded a Travel Board Hearing in August 2010. The Veteran reported weakness, pain, and tingling of his hands. The Veteran also reported soreness in his joints and calluses. Additionally, the Veteran reported that if he injured his hands he could not feel the pain, and he had no sensation to heat or cold. He also reported that he had swelling of his hands. Furthermore, the Veteran reported radiation of pain into his elbows. In July 2011, the Board requested an expert medical opinion from a VHA neurologist to determine any current upper extremity neurological impairment attributable to diabetic neuropathy. An August 2011 medical opinion was obtained from the Chief of Neurological Services. The doctor noted the Veteran's medical history and the pertinent medical records and examinations pertaining to his peripheral neuropathy. The doctor first addressed the June 2007 VA examination. The doctor stated that the numbness in the Veteran's calf and chest was related to coronary bypass graft surgery, due to the location and relationship to the procedure. Additionally, he stated that as monofilament testing is generally performed on the feet, he expects that the diagnosis of diabetic neuropathy referred to the feet. Furthermore, the doctor stated that aching arms is a non-specific complaint and could be secondary to any number of disorders or just the activity of the day. Moreover, he stated that he did not infer that polyneuropathy involving the hands was present at that time. The doctor then addressed the May 2009 VA examination report. The doctor noted that this examination found more widespread sensory abnormalities. Additionally, he noted that vibration sense was a large fiber sensory function. He also stated that fine touch incorporates pressure sensation from skin and hair follicles and is also large fiber. Furthermore, the doctor noted that pain sensation is mediated via small fibers. Moreover, he reported that normal reflexes would imply normal large fiber function (muscle spindle afferents and motor nerve fibers involved in the monosynaptic reflex are the largest in the body). The doctor concluded that based on the EMG studies, no large fiber neuropathy was present in the Veteran. Therefore, this rendered the subjective sensory findings of impaired fine touch and vibration in the upper extremities suspect. Additionally, the doctor stated that while there was no objective evidence to exclude the presence of pain sensation loss, these finding were also suspect. Lastly, the doctor stated that he could directly conclude that there was no convincing evidence for the presence of diabetic polyneuropathy in the upper extremities. Additionally, the doctor stated that the EMG studies showed the presence of bilateral carpal tunnel syndrome. This disorder was caused by compression of the median nerve in the carpal tunnel at the wrist. Additionally, the doctor stated that patients with microvascular disease caused by diabetes were predisposed to compression neuropathies. As such, it was likely as not that diabetes was related to the carpal tunnel syndrome. However, the median nerve supplies coetaneous sensation to the palmar surface of the hand and fingers extending from first digit to the lateral half of the fourth digit and proximally to the wrist in most patients (the exact extent varies from patient to patient). The sensory loss as described in the VA examination was not restricted to the median nerve distribution. As the subjective sensory findings are suspect, the doctor could only speculate that there may be sensory deficits present due to carpal tunnel syndrome. There clearly was no clinical evidence of motor deficits due to carpal tunnel syndrome. As such, the doctor concluded that the Veteran had an electrophysiological abnormality, but not motor or sensory deficits to go with the laboratory anomaly. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a compensable disability rating for peripheral neuropathy of the upper left and right extremities. Diagnostic Code 8513 provides ratings for paralysis of all radicular groups. Diagnostic Code 8513 provides that mild incomplete paralysis is rated 20 percent disabling. 38 C.F.R. § 4.124a. 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. While the Veteran complained of aching of the upper extremities and was diagnosed with diabetic peripheral neuropathy at the June 2007 VA examination, the VHA expert opinion stated that as monofilament testing is generally performed on the feet, he expected that the diagnosis of diabetic neuropathy referred to the Veteran's feet. Additionally, the Veteran complained of decreased sensation in the upper extremities at the May 2009 VA examination, at which time he was diagnosed with carpal tunnel syndrome, but no current electrodiagnostic evidence of diffuse polyperipheral neuropathy in the bilateral upper extremities was identified. Additionally, the VHA expert opinion noted that based on the EMG studies at the VA examination, no large fiber neuropathy was present in the Veteran. Therefore, this made the subjective sensory findings of impaired fine touch and vibration in the upper extremities suspect. Furthermore, the doctor stated that he could directly conclude that there was no convincing evidence for the presence of diabetic polyneuropathy in the upper extremities. Lastly, the VHA expert opinion noted that the Veteran did not have motor or sensory deficits. The above evidence suggests that the Veteran's peripheral neuropathy of the upper extremities was not manifested by objective symptomatology as of this time. As such, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a compensable disability rating for peripheral neuropathy of the upper right or left extremities, as there is no objective evidence of symptomatology of record at this time. Lastly, the Board notes that the Veteran was diagnosed with carpal tunnel syndrome, which was found to be a complication of diabetes mellitus. A claim of service connection for carpal tunnel syndrome as secondary to service-connected diabetes mellitus has been referred back to the AOJ for appropriate action. III. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2011). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b) (2011). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's peripheral neuropathy of the left and right upper extremities are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. Specifically, the evidence of record failed to establish that the Veteran suffered from any objective symptomatology associated with his peripheral neuropathy, much less that this condition required frequent hospitalizations or caused him difficulty in his employment or activities of daily life. For this reason, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a compensable disability rating for peripheral neuropathy of the right upper extremity is denied. Entitlement to a compensable disability rating for peripheral neuropathy of the left upper extremity is denied. ____________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs