Citation Nr: 1301520 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-07 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the left upper extremity. 2. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the left upper extremity is characterized by symptoms best described as mild. 2. The Veteran's peripheral neuropathy of the right upper extremity is characterized by symptoms best described as mild. 3. The Veteran's peripheral neuropathy of the left lower extremity is characterized by symptoms best described as mild. 4. The Veteran's peripheral neuropathy of the right lower extremity is characterized by symptoms best described as mild. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2012). 2. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2012). 3. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted. However, it finds that the disability has not significantly changed and that a uniform rating is appropriate. Disabilities of the ulnar nerve are rated under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8516 (complete or incomplete paralysis). A rating of 10 percent is awarded for mild incomplete paralysis of the major extremity. A rating of 20 percent is awarded for moderate incomplete paralysis of the major extremity. A rating of 30 percent is awarded for severe incomplete paralysis of the major extremity. A rating of 50 percent is awarded for complete paralysis of the ulnar nerve in the major extremity (with "griffin claw" deformity due to flexor contraction of the ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers; cannot spread the fingers or reverse; cannot adduct the thumb; flexion of wrist weakened). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. A note to the rating schedule states the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis, 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. Id. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran was afforded a fee-based VA examination in September 2006 wherein the examiner noted right and left peripheral pulses at 2+ throughout. The examiner noted that there was left deep peroneal nerve involvement revealing findings of neuralgia. There was sensory dysfunction with findings of decreased sensation. Neurological examination of the upper extremities revealed normal motor function with abnormal sensory functioning and findings of decreased sensation. Bilateral upper extremity reflexes revealed biceps and triceps jerk absent. Neurological examination of the lower extremities revealed motor function within normal limits. Sensory function was abnormal with decreased sensation in the left foot. Bilateral lower extremity reflexes revealed knee jerk absent and ankle jerk absent. A diagnosis of peripheral neuropathy was provided. VA treatment records note the Veteran's March 2007 complaints that he experienced periodic tingling in his toes. In an April 2007 statement in support of his claim, the Veteran explained that his feet hurt all of the time and that he had very little strength in his legs and arms. The Veteran was afforded a fee-based VA examination in May 2007. Physical examination of the extremities did not reveal atrophic skin changes, ulceration, gangrene, ischemic limb pain or persistent coldness. Peripheral nerve examination was within normal limits. Neurological examination of the upper extremities revealed normal motor function and normal sensory function. Neurological examination of the lower extremities found normal motor and sensory function. An addendum to the examination report noted that the Veteran had subjective symptoms of numbness and tingling of his hands and legs but that no objective findings were found on examination. In a March 2008 VA treatment note, the Veteran described some loss of sensation in both feet. During a May 2010 fee-based VA examination, the Veteran reported that he had been diagnosed with peripheral neuropathy of the upper and lower extremities. The Veteran described tingling and numbness, pain and weakness in the arms and legs. The Veteran stated that there was no abnormal sensation, anesthesia or paralysis of the affected parts. The Veteran stated that he experienced weakness in the extremities and sometimes had numbness in the left hand. The Veteran explained that his symptoms occurred intermittently, as often as once a day. The Veteran reported that he could not grip or walk well during a flare-up. Neurological examination revealed normal coordination. Motor function was within normal limits, sensory examination was bilaterally intact. The bilateral upper extremities revealed biceps and triceps jerk of 1+. There was a slight decrease noted in the Veteran's grip. Examination of the lower extremities revealed motor function and sensory examination intact. The left lower extremities revealed reflexes of 1+ knee jerk and ankle jerk. Peripheral nerve involvement was not evidence during examination. The examiner stated that there was no change of the Veteran's diagnosis and that the Veteran's condition was quiescent. It was noted that there was no specific nerve involved. Subjective factors were a history of numbness in all extremities; objective factors were a slight decrease in grip. The effect of the condition on the Veteran's usual occupation and daily activities was weakness. A fee-based July 2011 VA examination noted that examination of the pulses bilaterally in the upper extremities were 2+. Lower extremities were also 2+. Based on the evidence of record, the Board finds that a disability rating in excess of 10 percent is not warranted for the service connected nerve disability of the upper extremities at any time during the period of appeal. The record does not show evidence of moderate incomplete paralysis of the right ulnar nerve, or other impairment of the upper extremities not already considered in this decision. Similarly, a disability rating in excess of 10 percent is not warranted for a nerve disability of the lower extremities as, here too, the record does not demonstrate evidence of moderate incomplete paralysis of the sciatic nerve, or other impairment of the lower extremities not already considered in this decision. The Board is cognizant of the Veteran's complaints of numbness, tingling and weakness of the extremities; however, in large part, the Veteran was not found to have objective signs of neuropathy to support a higher rating. Significantly, the Veteran's March 2008 VA examiner found that the Veteran's nerve disorders were quiescent and his last neurological examination was normal. Accordingly, moderate incomplete paralysis is simply not demonstrated by the objective evidence of record. The symptomology demonstrated by the evidence of record most closely approximates a mild incomplete paralysis of both upper and both lower extremities. In light of the nearly complete retained function of the upper and lower bilateral extremities, the impairment due to peripheral neuropathy is not consistent with more than mild incomplete paralysis, and a rating higher than 10 percent is not warranted. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his peripheral neuropathy of the upper and lower extremities. Accordingly, the Board finds that the claims for increased ratings for peripheral neuropathy of the right and left upper extremities and of the right and left lower extremities must be denied. As a final matter, the Board notes that ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted 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. See 38 C.F.R. §3.321 (b)(1) (2012); see also 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 first 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board is unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected peripheral neuropathy. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In short, the evidence does not support the proposition that the Veteran's service connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) (2012). In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs