Citation Nr: 1321742 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 07-28 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy (PN) of the right upper extremity. 2. Entitlement to an initial disability rating in excess of 10 percent for PN of the left upper extremity. 3. Entitlement to an initial disability rating in excess of 10 percent for PN of the right lower extremity prior to May 3, 2011, and in excess of 40 percent thereafter. 4. Entitlement to an initial disability rating in excess of 10 percent for PN of the left lower extremity prior to May 3, 2011, and in excess of 40 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2011, the claims were remanded for additional evidentiary development, and they have now been returned for additional appellate consideration. In an April 2012 rating decision, the 10 percent ratings in effect for PN of the right and left lower extremities were increased to 40 percent, effective May 3, 2011. Because these staged increases do not represent the maximum rating available for the condition, the Veteran's claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The RO confirmed and continued the 10 percent ratings in effect for PN of the right and left upper extremities in an August 2012 supplemental statement of the case (SSOC). The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The PN of the upper extremities does not approximate moderate incomplete paralysis of the right or left median nerve. 2. For the period prior to May 3, 2011, PN of the lower extremities does not approximate moderate incomplete paralysis of the right or left sciatic nerve. 3. For the period from May 3, 2011, PN of the lower extremities has not been shown to be productive of severe incomplete paralysis with marked muscle atrophy of either lower extremity. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for PN 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 (DC) 8515 (2012). 2. The criteria for an initial disability rating greater than 10 percent for PN 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, DC 8515 (2012). 3. The criteria for an initial disability rating in excess of 10 percent for PN of the right lower extremity prior to May 3, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, DC 8520 (2012). 4. The criteria for an initial disability rating greater than 10 percent for PN of the left lower extremity prior to May 3, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, DC 8520 (2012). 5. The criteria for an initial disability rating greater than 40 percent for PN of the right lower extremity for the period beginning May 3, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, DC 8520 (2012). 6. The criteria for an initial disability rating greater than 40 percent for PN of the left lower extremity for the period beginning May 3, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required 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 the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. As to the current claims for higher initial ratings, the Veteran is challenging the initial disability ratings assigned following the grant of service connection for PN of the right and left upper and lower extremities. Thus, the filing of a notice of disagreement (NOD) as to the initial evaluation assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012). 38 C.F.R. § 3.159(b)(3) (2012). Rather, the Veteran's appeal as to the initial evaluation triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103 (2012). In this respect, a SOC set forth the relevant DC criteria for rating the PN of the upper and lower extremities. The Veteran received Dingess notice in letters dated in May 2006 and May 2008. The record contains the Veteran's service treatment records (STRs), VA treatment records, identified private treatment records, and the Veteran's contentions. Records considered by the Social Security Administration (SSA) were also added to the record. The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record. The appellant was afforded several VA examinations as to the disabilities at issue in this case. The most recent examination was conducted in May 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination is adequate, as it considered the pertinent evidence of record, to include the Veteran's statements. Additionally, the report provided clinical findings which are pertinent to the criteria applicable for rating the Veteran's disabilities. Thus, the Board finds that the medical evidence of record is adequate to make a determination in this case, and additional development by way of additional examinations would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to these issues has been met. 38 C.F.R. § 3.159(c)(4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The VCAA requires that the duties to notify and assist are satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds that the VCAA requirements have been met in this case. Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41 (2012). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). In cases such as this one, in which claims for higher evaluations arise out of the initial grant of service connection for the disabilities at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally, Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the laws administered by VA, 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 & Supp. 2012); 38 C.F.R. § 4.3 (2012). Upper Extremities Service connection for PN of the right and left upper extremities (as secondary to service-connected diabetes mellitus) was established upon rating decision in October 2006. For each extremity, a 10 percent rating was assigned, effective from May 12, 2006, for mild impairment under 38 C.F.R. § 4.124a, Diagnostic Code 8515, for mild incomplete paralysis. The upper extremities are rated under DC 8515, which contemplates impairment of the median nerve and governs disabilities with manifestations such as the hand inclined to the ulnar side; the index and middle fingers more extended than normal; considerable atrophy of the muscles of the thenar eminence; the thumb in the plane of the hand (ape hand); pronation incomplete and defective; absence of flexion of index finger and feeble flexion of middle finger; an inability to make a fist; the index and middle fingers remain extended; an inability to flex the distal phalanx of thumb; defective opposition and abduction of the thumb, at right angles to the palm; weakened wrist flexion; and pain with trophic disturbances. Under DC 8515, moderate impairment warrants a 30 percent rating for the major and 20 percent for the minor extremity, and severe impairment warrants a 50 percent rating for the major and 40 percent for the minor extremity. A higher rating is also available for complete paralysis, but as there is no evidence of complete paralysis (and a negative finding thereof), this rating is not applicable. When examined by VA in July 2006, the Veteran reported constant tingling and numbness in the hands and feet for the past 11/2 years. Examination showed that the peripheral pulses were normally felt. Sensation monofilament touch and pinprick were diminished over both hands. Hand grip was fairly good, and motor power appeared normal. Subsequently dated VA and private records dated from 2006 through 2008 reflect diagnosis of PN of the upper extremities. Private treatment records dated from 2008 through 2010 primarily show treatment for other conditions, to include a lumbar spine disorder. Additional VA examination was conducted in May 2011. The claims file was reviewed by the examiner. At this time the Veteran reported pain in all extremities for which he took Lyrica. He was unable to go along on family vacations due to pain in his extremities. Following examination, to include electrodiagnostic report, the examiner stated that there was insufficient evidence to warrant a diagnosis of diabetic PN of the bilateral upper extremities. The examination report reflects that the Veteran's motor and sensory findings were all within normal limits. The Veteran's clinical records associated with Virtual VA from 2012 were also reviewed, but such records did not describe much detail concerning upper extremity impairment. After review of the evidence, the Board finds that a rating greater than 10 percent is not warranted at any time during the appellate period for PN of the right or left upper extremity. The Board acknowledges that the Veteran reported tingling and numbness in the hands in the upper extremities in 2006, and that the record includes a finding of diminished sensation at that time. However, peripheral pulses were normally felt, hand grip was fairly good, and motor power appeared normal. Clinical findings were negligible at the 2011 examination, and more recent records showing additional problems have not been submitted. At any rate, the record does not suggest that symptoms at any time for the period in question approximate moderate incomplete paralysis. Thus, the medical evidence reflects no assessments of "moderate" impairment and the reported findings do not suggest such impairment. Simply put, the evidence does not suggest that the Veteran has constant diminishment of sensation or skin abnormality. Furthermore, the evidence consistently reflects negative findings and generally reflects negative histories as to functional impairment secondary to the PN. As stated above, when the involvement of a peripheral nerve is wholly sensory, the rating should be for the mild or, at most, moderate degree. In this case, based on the evidence of record, the Board finds the PN does not approximate more than mild incomplete paralysis of the left or right median nerve. As such, a schedular rating higher than 10 percent is denied for each upper extremity. Lower Extremities Service connection for PN of the right and left lower extremities (as secondary to service-connected diabetes mellitus) was established upon rating decision in October 2006. For each extremity, a 10 percent rating was assigned, effective from May 12, 2006. As noted earlier, increased ratings of 40 percent for each extremity were granted upon rating decision in April 2012, effective from date of exam on May 3, 2011. DC 8520 contemplates impairment of the sciatic nerve and governs disabilities with manifestations such as no active movement possible of muscles below the knee, flexion of knee weakened or lost, and foot dangle/drop. DC 8520 provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. A higher rating is also available for complete paralysis, but as there is no evidence of complete paralysis (and a negative finding thereof), this rating is not applicable. When examined by VA in July 2006, the Veteran reported constant tingling and numbness in both feet for the last 11/2 years. On exam, the pulses were normally felt. There was no cyanosis, no clubbing, and no lymphadenopathy. There was minimal edema of both lower extremities. Peripheral pulses were normally felt, and there was no cellulitis or chronic ulcers or gangrene. Both feet were warm to palpation. Sensation monofilament touch and pinprick were diminished over both feet. Motor power appeared normal. The Veteran's gait was normal. A private report from August 2006 shows that the Veteran did have decreased sensation to light touch of the lower extremities. He had an antalgic gait and diminished deep tendon reflexes of the lower extremities. He was able to perform heel to toe walk with difficulty. He was unable to perform tiptoe. He was able to get into a partially squatted position and return from that position. Lyrica was prescribed. Additional VA and private records dated from 2007 through 2010 essentially reflect treatment for other conditions although his PN was often noted as a condition currently diagnosed. At the May 3, 2011, examination, the examiner reviewed the claims file. The Veteran indicated that he took Lyrica for his complaints. He was unable to ride in a car for any distance due to his pain, to include that in his legs and feet. He could only walk about 150 feet before his legs started hurting and giving out. Examination showed gait abnormality. The Veteran walked hesitantly without a cane and held onto the desk in the room as he passed it or when turning around. There was decreased ankle and knee jerk. There was loss of sensation and mild atrophy in the lower extremities. The Veteran's clinical records associated with Virtual VA were also reviewed from 2012, which included physical therapy records related to the lower extremities. Such records did not indicate any severe incomplete paralysis with marked muscle atrophy, which is the criteria for the next higher rating. After review of the evidence, the Board finds that a rating greater than 10 percent is not warranted for the period prior to May 3, 2011. The Board acknowledges that the Veteran reported numbness tingling in the feet in July 2006 and sensation to touch and pinprick were diminished. However, motor power appeared normal, and the Veteran's gait was normal. Both feet were warm to palpation. A private examiner prescribed Lyrica in August 2006, and significant increase in lower extremity residuals is not noted in the record until VA examination on May 3, 2011. For the period prior to that VA exam, the record simply does not suggest that symptoms approximated moderate incomplete paralysis. Moreover, the medical evidence reflects no assessments of "moderate" impairment and the reported findings do not suggest such an impairment. But as noted above, there was increased impairment as of VA examination on May 3, 2011. At that time, in addition to loss of sensation in the lower extremities, there was mild atrophy. The examiner noted that the Veteran's gait was abnormal, and he was hesitant in his ambulation, and there was decreased ankle and knee jerk. As of the date of this May 3, 2011, examination, the evidence reflects symptoms that warrant the currently assigned 40 percent disability rating for moderately severe residuals. For a rating of 60 percent, residuals of incomplete paralysis of the sciatic nerve must be severe with marked muscular atrophy. This degree of impairment is clearly not indicated. As noted above, there is some loss of sensation with decreased ankle and knee jerk and mild atrophy. Such findings are contemplated in the current 40 percent rating. Final Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's PN residuals are manifested by symptoms such pain, tingling, and numbness in the upper and lower extremities. These manifestations are all contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. [Continued on Next Page] ORDER An initial disability rating greater than 10 percent for PN of the right upper extremity is denied. An initial disability rating greater than 10 percent for PN of the left upper extremity is denied. An initial disability rating greater than 10 percent for PN of the right lower extremity for the period prior to May 3, 2011, is denied. An initial disability rating greater than 10 percent for PN of the left lower extremity for the period prior to May 3, 2011, is denied. An initial disability rating greater than 40 percent for PN of the right lower extremity for the period from May 3, 2011, is denied. An initial disability rating greater than 40 percent for PN of the left lower extremity for the period from May 3, 2011, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs