Citation Nr: 1304555 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 06-16 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for right upper extremity peripheral neuropathy. 2. Entitlement to a disability rating in excess of 10 percent for left upper extremity radiculopathy. 3. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy. 4. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from April 1970 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. This case was previously before the Board, most recently in June 2012, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's right upper extremity peripheral neuropathy is manifested by incomplete paralysis of the median nerve that is mild in severity. 2. The Veteran's left upper extremity peripheral neuropathy is manifested by incomplete paralysis of the median nerve that is mild in severity. 3. The Veteran's right lower extremity peripheral neuropathy is manifested by incomplete paralysis of the external popliteal nerve that is mild in severity. 4. The Veteran's left lower extremity peripheral neuropathy is manifested by incomplete paralysis of the external popliteal nerve that is mild in severity. 5. The Veteran's service-connected disabilities do not render him unable to obtain and maintain gainful employment and there are no unusual or exceptional disability factors warranting referral of the Veteran's claim for TDIU for extra-schedular consideration. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right upper extremity peripheral neuropathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8515 (2012). 2. The criteria for a disability rating in excess of 10 percent for left upper extremity peripheral neuropathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8515 (2012). 3. The criteria for a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8521 (2012). 4. The criteria for a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8521 (2012). 5. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that the Veteran was mailed a letter in July 2004 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In a March 2006 statement of the case notification letter, the Veteran was provided with appropriate notice with respect to the disability-rating and effective-date elements of his claims. In a June 2012 letter, the Veteran was provided notice with respect to what the evidence must show to substantiate his claim of entitlement to TDIU. Although the Veteran was not provided adequate notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claims were readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Legal Criteria Disability Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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. Upper Extremity Peripheral Neuropathy The Veteran's right and left upper extremity peripheral neuropathy is rated as paralysis of the median nerve, which is rated under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8515. This diagnostic code provides disability ratings which specify major or minor extremity. For the major extremity, a 10 percent disability rating is warranted for incomplete paralysis of the median nerve productive of mild symptoms. A 30 percent disability rating is warranted for incomplete paralysis of the median nerve productive of moderate symptoms. A 50 percent disability rating is warranted for incomplete paralysis of the median nerve productive of severe symptoms. A maximum 70 percent disability rating is warranted for complete paralysis of the median nerve. For the minor extremity, a 10 percent disability rating is warranted for incomplete paralysis of the median nerve productive of mild symptoms. A 20 percent disability rating is warranted for incomplete paralysis of the median nerve productive of moderate symptoms. A 40 percent disability rating is warranted for incomplete paralysis of the median nerve productive of severe symptoms. A maximum 60 percent disability rating is warranted for complete paralysis of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Lower Extremity Radiculopathy The Veteran's right and left lower extremity peripheral neuropathy is rated as paralysis of the external popliteal nerve (common peroneal), which is rated under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under this code, a 10 percent disability rating is warranted for incomplete paralysis of the common peroneal nerve productive of mild symptoms. A 20 percent disability rating is warranted for incomplete paralysis of the common peroneal nerve productive of moderate symptoms. A 30 percent disability rating is warranted for incomplete paralysis of the common peroneal nerve productive of severe symptoms. A maximum 40 percent disability rating is warranted for complete paralysis of the common peroneal nerve. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. "Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU because of "subjective" factors that the "objective" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Disability Ratings In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. a. Evaluation of Bilateral Upper Extremity Peripheral Neuropathy The Veteran was afforded a VA examination in January 2005. At that time, the Veteran reported that he experienced daily numbness and tingling in his hands. He reported that he did not take medication for treatment. The Veteran reported that at times when working at the grocery store, he was unable to work as fast as other employees because of the numbness in his hands. He denied experiencing flare-ups, but reported that he did experience some fatigue. He denied localized weakness and loss of function. The Veteran reported that he was right handed. Upon physical examination, inspection of the hands revealed no ulceration or amputation. Color and temperature of the hands was unremarkable. There was some dryness of the skin on his hands, but it was noted that the Veteran washed his hands frequently. Strength testing in the hands was within normal limits. The Veteran appeared to have good grasp and fist in both hands and he was able to oppose his fingers with his thumbs. There was no muscle atrophy noted. Sensation to touch and pinprick was present in both hands. Deep tendon reflexes were within normal limits and equal, bilaterally. The examiner diagnosed bilateral upper extremity peripheral neuropathy and noted that it was mild in nature. In March 2005, the Veteran was afforded a VA diabetes mellitus (DM) examination. At that time, the Veteran's neuropathy was also evaluated. The Veteran reported experiencing occasional numbness and tingling in his fingers. Sensory examination of the Veteran's upper extremities revealed normal motor strength. The examiner diagnosed polyneuropathy at that time. The examiner noted that he agreed with the January 2005 VA examiner's assessment that the Veteran's polyneuropathy was mild in nature. In August 2010, the Veteran was afforded another VA examination. At that time, the Veteran reported that he experienced constant numbness and tingling in both hands. He reported that the symptoms had gotten progressively worse over time. The Veteran reported that he experienced difficulty grasping objects. Upon physical examination, there was no decreased sensation to pinprick, fine touch, or vibration in either upper extremity. Proprioception was intact in both upper extremities. Detailed motor examination was normal. There were no tremors or evidence of fasciculations. The examiner noted that the nerve disorder did not have an effect on the function of any of the joints. The examiner confirmed the diagnosis of bilateral upper extremity peripheral neuropathy and noted that the functional effects of the disability on the Veteran's occupational activities included weakness, fatigue, and pain. In August 2012, the Veteran was afforded another VA examination. At that time, the Veteran reported that the nerves in his arms caused his muscles to bunch. He reported that he was unable to play sports as a result of his neuropathy. He reported that he was unable to pitch a baseball, "make a muscle" in either arm, swim, or bowl. The Veteran was noted to be right-handed. The examiner specifically noted that the Veteran did not report any symptoms that were attributable to his peripheral neuropathy. Upon physical examination, muscle strength was normal in both upper extremities. Deep tendon reflexes were normal. Position sense and vibration sense were both normal. There was no muscle atrophy or trophic changes. The examiner noted that there was no medical evidence or clinical findings of upper extremity neuropathy. The examiner acknowledged that a December 2004 electromyography (EMG) report showed the Veteran to have early, mild polyneuropathy and noted that it was possible that it was so early and mild that there were no clinical findings and only electrophysiological evidence of neuropathy. The examiner further noted that the Veteran's subjective presentation consisted of weakness in his arms, which was inconsistent with diabetic neuropathy and was not supported by the clinical findings. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there are no treatment notes of record indicating that the Veteran has more functional impairment as a result of his upper extremity neuropathy than that which has been reported in the various VA examination reports of record. The Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for either his right or left upper extremity peripheral neuropathy. In this regard, the Board notes that all the VA examiners have reported that the Veteran's neuropathy is very mild in nature. In fact, the August 2012 VA examiner clearly reported that there is no objective evidence of neuropathy and that the Veteran's reports of weakness in his arms are inconsistent with the objective findings. Therefore, the Board finds that the symptoms of the Veteran's right and left upper extremity neuropathy are mild in nature and an increased disability rating is not warranted for either arm at this time. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Consideration has been given to assigning a staged rating. However, at no time during the period in question has the disability warranted a higher schedular rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). b. Evaluation of Bilateral Lower Extremity Peripheral Neuropathy In January 2005, the Veteran was afforded a VA examination. At that time, he reported that he experienced daily numbness and tingling in his feet. He denied receiving treatment and denied experiencing flare-ups. The Veteran reported that he experienced some fatigue, but denied localized weakness and loss of function. He reported that he experienced some difficulty when walking because his feet would get numb and bother him. Upon physical examination, the Veteran's gait was unremarkable. He was ambulatory and was able to walk without assistance or devices. Inspection of the feet showed no ulceration or amputation. The color and temperature of the feet was unremarkable. Strength testing in the feet was within normal limits. There was no muscle atrophy noted. Sensation to touch and pinprick was present in both feet. Deep tendon reflexes were within normal limits and equal, bilaterally. The examiner diagnosed sensory polyneuropathy in both feet and noted that it was mild in nature. In March 2005, the Veteran was afforded a VA diabetes mellitus (DM) examination. At that time, the Veteran's neuropathy was also evaluated. He Veteran reported experiencing numbness and tingling in his feet. Upon physical examination, there was no edema or varicose veins. Posterior tibial and dorsalis pedis pulses were normal. Sensory examination of the Veteran's lower extremities revealed normal motor strength. The Veteran's gait was normal with toe and heel walk. The examiner diagnosed polyneuropathy at that time. The examiner noted that he agreed with the January 2005 VA examiner's assessment that the Veteran's polyneuropathy was mild in nature. In August 2010, the Veteran was afforded another VA examination. At that time, the Veteran reported that he experienced constant numbness and tingling in both feet. He reported that the symptoms had gotten progressively worse over time. The Veteran denied balance and mobility problems. The Veteran reported that he was unable to go bowling or running as a result of his neuropathy. Upon physical examination, there was no decreased sensation to pinprick, fine touch, or vibration. Proprioception was intact in both lower extremities. Detailed reflex examination was normal. Detailed motor examination revealed active movement against full resistance, bilaterally. There was no muscle atrophy, gait abnormality, imbalance or tremor, or evidence of fasciculations. The nerve disability did not affect any of the Veteran's joints. The examiner confirmed the diagnosis of bilateral lower extremity peripheral neuropathy and noted that the functional effect of the disability on the Veteran's occupational activities was decreased mobility and pain. In August 2012, the Veteran was afforded another VA examination. At that time, the Veteran reported that the nerves in his legs caused his muscles to bunch. He reported that he was unable to play sports as a result of his neuropathy. He reported that he was unable to run, jog, swim, or bowl. He reported that he had no strength in his legs. The examiner specifically noted that the Veteran did not report any symptoms that were attributable to his peripheral neuropathy. Upon physical examination, muscle strength was normal in both lower extremities. Deep tendon reflexes were normal. Position sense and vibration sense were both normal. There was no muscle atrophy or trophic changes. The examiner noted that there was no medical evidence or clinical findings of lower extremity peripheral neuropathy. The examiner acknowledged that a December 2004 EMG report showed the Veteran to have early, mild polyneuropathy and noted that it was possible that it was so early and mild that there were no clinical findings and only electrophysiological evidence of peripheral neuropathy. The examiner further noted that the Veteran's subjective presentation consisted of weakness in his legs, which was inconsistent with diabetic neuropathy and was not supported by the clinical findings. As noted above, the Veteran receives treatment for various disabilities at the VA Medical Center. In December 2004, the Veteran was afforded an EMG of the lower extremities. A review of the EMG report showed the Veteran to have early polyneuropathy in his lower extremities. However, there are no treatment notes of record indicating that the Veteran has more functional impairment as a result of his lower extremity neuropathy than that which has been reported in the various VA examination reports of record. The Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for either his right or left lower extremity neuropathy. In this regard, the Board notes that all the VA examiners have reported that the Veteran's neuropathy is very mild in nature. In fact, the August 2012 VA examiner clearly reported that there is no objective evidence of neuropathy and that the Veteran's reports of weakness in his legs and feet are inconsistent with the objective findings. Therefore, the Board finds that the symptoms of the Veteran's right and left lower extremity radiculopathy are mild in nature and an increased disability rating is not warranted for either leg at this time. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Consideration has been given to assigning a staged rating. However, at no time during the period in question has the disability warranted a higher schedular rating. Hart, 21 Vet. App. 505. c. Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record shows that the manifestations of the disabilities are contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disabilities would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization. The Board notes that consideration of the Veteran's potential inability to work as a result of his peripheral neuropathy is addressed below in the decision regarding the Veteran's entitlement to TDIU. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. Entitlement to TDIU The Veteran has asserted that he is unable to obtain and maintain gainful employment as a result of his service-connected disabilities. Service connection is in effect for the following disabilities: diabetes mellitus, rated 20 percent disabling; right upper extremity peripheral neuropathy, rated 10 percent disabling; left upper extremity peripheral neuropathy, rated 10 percent disabling; right lower extremity peripheral neuropathy, rated 10 percent disabling; and right lower extremity peripheral neuropathy, rated 10 percent disabling. The Veteran's combined rating for his service-connected disabilities, to include the appropriate bilateral factor, is 50 percent. The Veteran accordingly does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), such case may be considered for extra-schedular consideration in accordance with 38 C.F.R. § 3.321. The evidence of record indicates that the Veteran has not worked since late 2010, when he was dismissed from his part-time position at a grocery store. There is no indication from the record as to whether he has sought further employment since that time. However, a review of the record shows that the Veteran was afforded VA examinations for his service-connected diabetes mellitus and peripheral neuropathy in August 2012. At that time, the VA examiner opined that the Veteran's diabetes mellitus did not preclude the Veteran from obtaining and maintaining gainful employment when considering his work experience and level of education. In this regard, the examiner noted that the Veteran's diabetes mellitus was well controlled and there was no evidence that the Veteran had been hospitalized due to hypoglycemia or ketoacidosis. Additionally, the examiner noted that the Veteran's diabetes mellitus was not causing any functional impairment. With regard to the Veteran's peripheral neuropathy, the VA examiner opined that the Veteran's peripheral neuropathy would not preclude him from obtaining and maintaining gainful employment. The VA examiner noted that the Veteran's prior work experience, level of education, and prior training were taken into consideration when forming this opinion and that while the Veteran had been diagnosed with bilateral upper and lower extremity neuropathy, the disability was very mild in nature and there were no clinical findings of such that would prevent the Veteran from working. Further, the Board acknowledges that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. However, a review of the SSA determination shows that the Veteran was found to be unable to work for the purposes of SSA disability compensation as a result of mental retardation and anxiety. The Board notes that the Veteran is not currently service-connected for any sort of mental or psychiatric disability. There is no indication from the SSA records on file that any of the Veteran's service-connected disabilities, by themselves or in conjunction with other disabilities, render the Veteran unable to obtain and maintain gainful employment. Therefore, the Board has concluded that referral of the TDIU claim for extra-schedular consideration is also unwarranted. ORDER Entitlement to a disability rating in excess of 10 percent for right upper extremity peripheral neuropathy is denied. Entitlement to a disability rating in excess of 10 percent for left upper extremity peripheral neuropathy is denied. Entitlement to a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. Entitlement to a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy is denied. Entitlement to TDIU is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs