Citation Nr: 1321790 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-39 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial compensable rating for service-connected right (major) upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II, prior to March 18, 2013, and a rating in excess of 40 percent thereafter. 2. Entitlement to an initial compensable rating for service-connected left upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II, prior to March 18, 2013, and a rating in excess of 30 percent thereafter. 3. Entitlement to service connection for amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. That decision granted service connection for right and left upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II, and assigned each extremity an initial noncompensable rating, effective March 9, 2009. The decision also denied service connection for amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II. In May 2011, the Board remanded the issue of entitlement to service connection for amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II. The Board also denied initial compensable ratings for right and left upper extremity peripheral neuropathy. However, in a March 2012 Order, the United States Court of Appeals for Veterans Claims (Court) granted a March 2012 Joint Motion for Remand (JMR) of the claims of entitlement to initial compensable ratings for right and left upper extremity peripheral neuropathy, and vacated the Board's May 2011 decision, limited to those issues. These matters were remanded to the Board for readjudication in accordance with the JMR. By an April 2013 rating decision of the Appeals Management Center (AMC), the ratings assigned to the Veteran's right and left upper extremity peripheral neuropathy were increased to 40 percent for the right upper extremity and 30 percent for the left upper extremity, each effective March 18, 2103. As the 40 and 30 percent ratings are less than the maximum available ratings, and there exists a period of time during which the increased ratings were not in place, the issues remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In April 2013, the Veteran submitted evidence in support of a claim for service connection for a psychiatric disability to include PTSD. It is noted that the Board previously denied this claim in January 2013; thus, the submission of additional evidence is construed as a petition to reopen a claim of service connection and is referred to the RO for appropriate action. The issue of entitlement to service connection for amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II, is addressed in the REMAND portion of the decision below, is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. Prior to March 18, 2013, the Veteran's service-connected right (major) upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II is manifested by decreased sensation and numbness and tingling, which more nearly approximates mild incomplete paralysis of the radial nerve. 2. Since March 18, 2013, the Veteran's service-connected right (major) upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II is manifested by decreased sensation, numbness and tingling, shoulder and knuckle pain, and trophic changes, which more nearly approximates moderate incomplete paralysis of the radial nerve. 3. Prior to March 18, 2013, the Veteran's service-connected left upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II was manifested by decreased sensation and numbness and tingling, which more nearly approximates mild incomplete paralysis of the radial nerve. 4. Since March 18, 2013, the Veteran's service-connected left upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II is manifested by decreased sensation, numbness and tingling, shoulder and knuckle pain, and trophic changes, which more nearly approximates moderate incomplete paralysis of the radial nerve. CONCLUSIONS OF LAW 1. Prior to March 18, 2013, the criteria for an initial 20 percent rating, and no more, for service-connected right (major) upper extremity peripheral neuropathy secondary to diabetes mellitus Type II have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.6, 4.7, 4.10, 4.14, 4.20, 4.123, 4.124, Diagnostic Code (DC) 8514 (2012). 2. Since March 18, 2013, the criteria for a rating in excess of 40 percent for service-connected right (major) upper extremity peripheral neuropathy secondary to diabetes mellitus Type II have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.6, 4.7, 4.10, 4.14, 4.20, 4.123, 4.124, DC 8514 (2012). 3. Prior to March 18, 2013, the criteria for an initial 20 percent rating, and no more, for service-connected left upper extremity peripheral neuropathy secondary to diabetes mellitus Type II have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.6, 4.7, 4.10, 4.14, 4.20, 4.123, 4.124, DC 8514 (2012). 4. Since March 18, 2013, the criteria for a rating in excess of 30 percent for service-connected left upper extremity peripheral neuropathy secondary to diabetes mellitus Type II have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.6, 4.7, 4.10, 4.14, 4.20, 4.123, 4.124, DC 8514 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist the Appellant The Veteran's claims decided herein arise from his disagreement with the initial ratings assigned following the grants of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, during the appeal period, the Veteran was afforded VA examinations in April 2009 and March 2013. While the April 2009 VA examiner, as discussed at length below, attributed the Veteran's symptoms to a nerve not specifically contemplated by the rating criteria; the March 2013 VA examiner did specify the nerves affected, and the Board may thus analyze the Veteran's claims considering the nerve(s) affected and the applicable rating criteria. The resulting medical opinions, together, are considered adequate for rating purposes as they are based on consideration of the Veteran's medical history and describe the relevant disabilities in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran has not indicated that he was seen regarding his disabilities by any provider or at any time other than the treatment reflected in the current records on file. Therefore, all identified and authorized post-service treatment records available and relevant to the issue on appeal have been requested or obtained. Based upon the above, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Additionally, the Board finds there has been substantial compliance with its January 2013 remand directives. The Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC afforded the Veteran a sufficient VA examination of his bilateral upper extremities in March 2013 and issued a Supplemental Statement of the Case (SSOC) in April 2013. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). Increased Ratings I. Pertinent Laws and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In the appealed May 2009 rating decision, the RO granted service connection for right and left upper extremity peripheral neuropathy, assigning each extremity an initial noncompensable rating effective March 9, 2009, the date of receipt of the claim. In April 2013, the AMC granted increased ratings and assigned a 40 percent rating to the Veteran's right upper extremity and a 30 percent rating to his left upper extremity, each effective March 18, 2103, the date of the clinical evidence supporting such ratings. Peripheral neuropathy is not specifically listed in the rating schedule; therefore, it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related. 38 C.F.R. § 4.20. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The Veteran's peripheral neuropathy of the bilateral upper extremities was initially rated by analogy to incomplete paralysis of the musculocutaneous nerve under DC 8517. 38 C.F.R. § 4.124a, DC 8517 (2012). Potentially applicable, as will be discussed below, are DC 8514, contemplating the radial nerve; DC 8515, contemplating the median nerve; and DC 8516, contemplating the ulnar nerve. 38 C.F.R. § 4.124a, DCs 8514-8516 (2012). The criteria contemplating disabilities of the peripheral nerves considered in this appeal provide different ratings for the major and minor extremities. The Veteran has indicated, during VA examination in March 2013, that he is right-handed; and the Board will thus evaluate his claims accordingly. 38 C.F.R. § 4.124a, DCs 8514, 8515, 8516. Under DC 8514, mild incomplete paralysis of the musculospiral nerve (radial nerve) of either upper extremity, or moderate incomplete paralysis in the minor extremity warrants a 20 percent rating. A 30 percent rating is warranted for moderate incomplete paralysis of the radial nerve in the major extremity. Severe incomplete paralysis of the radial nerve in the minor extremity warrants a 40 percent rating, and the same in the major extremity warrants a 50 percent rating. Complete paralysis of the radial nerve in the minor extremity warrants a 60 percent rating, and such warrants a maximum 70 percent rating in the major extremity. Complete paralysis of the radial nerve contemplates symptoms such as drop of hand and fingers, perpetual flexion of the wrist and fingers, adduction of the thumb with the thumb falling within the line of the outer border of the index finger, an inability to extend the hand at the wrist, an inability to extend the proximal phalanges of the fingers, and inability to extend the thumb, and inability to move the wrist laterally, weakened supination of the hand, weakened extension and flexion of the elbow, and the loss of synergic motion of the extensors which seriously impairs the hand grip. (Total paralysis of the triceps occurs only as the greatest rarity). 38 C.F.R. § 4.124a, DC 8514. Under DC 8515, a 10 percent rating is assigned for mild incomplete paralysis of the median nerve of either upper extremity. A 20 percent rating is warranted for moderate incomplete paralysis of the median nerve in the minor extremity, and such warrants a 30 percent rating in the major extremity. A 40 percent rating is warranted for severe incomplete paralysis of the median nerve, and such warrants a 50 percent rating in the major extremity. A 60 percent rating is warranted for complete paralysis of the median nerve in the minor extremity, and such warrants a maximum 70 percent in the major extremity. Complete paralysis of the median nerve contemplates such symptoms as the hand inclined to the ulnar side, the index and middle fingers more extended than normally, 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, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. Under DC 8516, a 10 percent rating is warranted for mild incomplete paralysis of the ulnar nerve of either upper extremity. A 20 percent rating is warranted for moderate incomplete paralysis of the ulnar nerve in the minor extremity, and a 30 percent rating is warranted for such in the major extremity. A 30 percent rating is warranted for severe incomplete paralysis of the ulnar nerve in the minor extremity, and a 40 percent rating is warranted for the same in the major extremity. A 50 percent rating is warranted for complete paralysis of the ulnar nerve in the minor extremity, and a maximum 60 percent rating is warranted for such in the major extremity. Complete paralysis of the ulnar nerve contemplates such symptoms as "griffin claw" deformity due to flexor contraction of the right and little fingers, very marked atrophy in the dorsal interspaces and the thenar and hypothenar eminences, loss of extension of the right and little fingers, an inability to spread (or reverse) the fingers, an inability to adduct the thumb, and weakness of the flexion of the wrist. 38 C.F.R. § 4.124a, DC 8516. Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating 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. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the typical picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. 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. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate. Id. 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. II. Medical and Lay Evidence The January 2009 VA fee-basis examination report shows that on a review of systems, the Veteran complained of tingling and numbness. The neurologic examination, however, revealed normal motor and sensory function of the bilateral upper extremities. The April 2009 VA examination report reflects that the examiner reviewed the claims file. The Veteran reported the onset of neuropathy one and a half years ago, manifested by numbness and tingling in his hands. The symptoms were intermittent at onset and have progressed over time. He now had a pins and needles sensation along with numbness every day, without pain. He was not currently receiving treatment. The motor examination revealed upper extremity muscle and grip strength measuring 5/5 bilaterally. The sensory function report revealed decreased sensory to pain and light touch. The affected nerve was the digital cutaneous nerve. There was no muscle atrophy, abnormal muscle tone or bulk, or abnormal movements. The function of any joint was not affected by the nerve disorder. His gait and balance were normal. The Veteran reported that he retired in 2008. There were no effects of the disorder on his usual daily activities. The examiner provided a diagnosis of peripheral neuropathy of the bilateral upper extremities secondary to diabetes. On VA examination in March 2013, the Veteran presented with diabetic peripheral neuropathy, upper extremities. He reported that lifting things above his head caused his shoulders to hurt and he experienced pain in his joints. He complained that his knuckles were hurting, and reported that he used to be able to click his fingers. He reported heavy use of his hands and the ability to pick up bolts, nuts, and screws. He noted that he sometimes woke in the morning or during the night with numbness in the hands and wrists. He noted that his dominant hand was the right hand. He presented with mild paresthesias and/or dysesthesias and numbness in the bilateral upper extremities, without constant or intermittent pain. Muscle strength testing revealed normal strength in the elbows, wrists, grip, and pinch, bilaterally. There was no muscle atrophy. Reflex testing revealed hypoactive reflexes in the biceps, triceps, and brachioradialis, bilaterally. Sensory testing revealed normal sensation in the shoulder, inner/outer forearm, and hand/fingers, bilaterally. There was a five-centimeter two-point discrimination noted in all fingers, and a four-centimeter discrimination in all fingers, except the middle (long) fingers, bilaterally. The Veteran had trophic changes, to include diminished hair at the distal fingers. He had a normal gait. The examiner reported that there was mild incomplete paralysis of the radial, median, and ulnar nerves, bilaterally. The musculocutaneus, circumflex, long thoracic, upper radicular group, middle radicular group, and lower radicular group nerves were normal. The Veteran appeared without assistive devices and the examiner noted that his functioning was not so diminished such that amputation with prosthesis would equally serve him. The examiner noted the results of an elevated diabetes blood test, conducted in September 2012. Results of March 2013 electromyography (EMG) testing revealed an abnormal result for the left upper extremity, specifically, chronic left cervical radiculopathy in the distribution of the C-7 myotome, without active denervation. However, the examiner noted that the Veteran's EMG studies did not support his complaints. The examiner reported that the Veteran's peripheral nerve disabilities did not impact his ability to work. He opined that after review of the claims file and examination of the Veteran, his right and left upper extremity peripheral neuropathy was mild, and reasoned that the Veteran may wake in the morning or at night with numbness in the wrists and hands, however, EMG and two-point discrimination studies were essentially normal, without evidence of active denervation or motor impairment. III. Analysis At the time of the Board's May 2011 denial of initial compensable ratings for right and left upper extremity peripheral neuropathy, it found that rating the Veteran's disabilities under DC 8517, contemplating the musculocutaneous nerve, was appropriate. 38 C.F.R. § 4.124a, DC 8517. While the VA examiner, in April 2009, reported that the nerve affected was the digital cutaneous nerve, such is not listed in the diagnostic criteria and the Board, by analogy, deemed the musculocutaneous nerve as the most closely related nerve. 38 C.F.R. § 4.20. However, the parties to the March 2012 JMR determined that the Board did not sufficiently determine the applicability of other diagnostic criteria. Specifically, that the Board did not consider not only the functions affected, but the anatomical localization and symptoms, when determining that the musculocutaneous nerve was analogous, for rating purposes, to the Veteran's digital cutaneous nerve. Id. The JMR contains a lengthy recitation of medical terminology that results in the conclusion that the musculocutaneous and digital cutaneous nerves do not appear to be analogous, and that the median and ulnar nerve are the nerves that appear to be the most related to symptoms of peripheral neuropathy in the hands. In essence, the JMR directed the Board to properly consider all potentially applicable diagnostic criteria and provide sufficient reasons and bases for any future determination as to which diagnostic criteria is most analogous to the Veteran's disabilities. To that end, the Board sought a medical opinion to obtain medical evidence as to which of the Veteran's peripheral nerves were affected. As discussed above, the VA examiner, in March 2013, specifically reported that the radial, median, and ulnar nerves were affected; and the upper, middle, and lower radicular groups, as well as the musculocutaneous, circumflex, and long thoracic nerves were not affected. Based on the VA examiner's March 2013 opinion that the nerves affected by the Veteran's disabilities of the peripheral nerves are the radial, median, and ulnar nerves, the Board will analyze his claims, during the entire appeal, based on consideration of the diagnostic criteria contemplating those nerves, DCs 8514, 8515, and 8516. 38 C.F.R. §§ 4.20, 4.124a, DCs 8514, 8515, 8516; Butts, 5 Vet. App. 532, at 538; Pernorio, 2 Vet. App. 625. In this regard, to avoid pyramiding, as the Veteran has the same symptoms attributed to three different peripheral nerves of the bilateral upper extremities; the Board finds, giving the most benefit to the Veteran, that DC 8514, contemplating the radial nerve, is the most appropriate diagnostic code under which to rate his claims. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. 259. DC 8514, contemplating the radial nerve, provides higher ratings than DC 8515, contemplating the median nerve, and DC 8516, contemplating the ulnar nerve. 38 C.F.R. § 4.124a, DCs 8514, 8515, 8516 The Board notes here that the AMC, in its April 2013 rating decision which increased the ratings assigned to Veteran's the right and left upper extremity peripheral neuropathy specifically found that DC 8512, contemplating the lower radicular group, was the most appropriate diagnostic code, as such was more reflective of the Veteran's disabilities. The Board finds no basis for such a finding, and notes that such could be a typographical error; as there is medical evidence of record that specifically excludes the lower radicular group as the nerves affected. Prior to March 18, 2013, specifically, in January 2009, there is evidence of numbness and tingling in the upper extremities, without clinical evidence of abnormality. In April 2009, there is evidence of numbness and tingling, with the sensation of pins and needles, without pain; and clinical evidence of decreased sensation to pain and light touch. The clinical findings, and lay report of symptoms, show that the impairment of the affected peripheral nerves, absent any motor deficits and pain, is wholly sensory. Thus, the rating should be for the mild, or at most, the moderate degree. The Veteran still retains sensation described as "decreased," and so he does not have a total loss of sensation. There is no lay or clinical evidence of more disabling symptoms. The Board finds that these findings show that the peripheral neuropathy associated with the Veteran's bilateral upper extremities more nearly approximates mild incomplete paralysis of the radial nerve. DC 8514, contemplating the radial nerve, provides a 20 percent rating for mild incomplete paralysis in both the major and minor extremities. 38 C.F.R. § 4.124a, DC 8514. Accordingly, the Veteran is entitled to initial 20 percent ratings, for his right upper and left upper extremity peripheral neuropathy under DC 8514. There is no evidence of moderate or severe incomplete paralysis, or symptoms that more closely approximate such; or complete paralysis, warranting higher ratings under DC 8514. 38 C.F.R. § 4.124a, DC 8514. Since March 18, 2013, there is evidence of numbness and tingling of the hands, trophic changes, including diminished hair at the distal fingers, shoulder and knuckle pain, decreased sensation, and mild paresthesias and/or dysesthesias and numbness, without constant or intermittent pain. There were hypoactive reflexes in the biceps, triceps, and brachioradialis, bilaterally, a five-centimeter two-point discrimination noted in all fingers, a four-centimeter discrimination in all fingers, except the middle (long) fingers, bilaterally, and chronic left cervical radiculopathy in the distribution of the C-7 myotome on EMG testing, without active denervation. The clinical findings, and lay report of symptoms, show that the impairment of the affected peripheral nerves, with shoulder and knuckle pain, and, significantly trophic changes, is more than wholly sensory. While the VA examiner, in March 2013, specifically described the Veteran's disabilities as mild, the Board finds evidence of symptoms that more closely approximate moderate incomplete paralysis of the radial nerve, bilaterally. 38 C.F.R. § 4.6. The Board does not discount the examiner's opinion, however, it is significant that the Veteran's disabilities were already found to most closely approximate mild incomplete paralysis of the radial nerve prior to March 18, 2013, and results of the March 2013 VA examination demonstrate additional, and more severe symptoms. The Board has considered the Veteran's trophic changes, abnormal results of EMG testing on the left extremity, pain, and hypoactive reflexes. There is no lay or clinical evidence of more severe symptoms. Thus, these findings, since March 18, 2013, show that the peripheral neuropathy associated with the Veteran's bilateral upper extremities more closely approximates moderate incomplete paralysis of the radial nerve. DC 8514, contemplating the radial nerve, provides a 30 percent rating for moderate incomplete paralysis in the major extremity, and a 20 percent rating for moderate incomplete paralysis in the minor extremity. 38 C.F.R. § 4.124a, DC 8514. Accordingly, while the Board will not disturb the Veteran's current ratings since March 18, 2013, 40 percent for his right upper extremity peripheral neuropathy and 30 percent for his left upper extremity; the Board finds no basis for increased ratings. Under DC 8514, considering the clinical and lay evidence of record, the Veteran is entitled to a 30 percent rating for his right upper extremity peripheral neuropathy, and a 20 percent rating for his left upper extremity peripheral neuropathy, since March 18, 2013. There is no evidence of severe incomplete paralysis, or symptoms that more closely approximate such; or complete paralysis, warranting higher ratings under DC 8514. 38 C.F.R. § 4.124a, DC 8514. IV. Conclusion and Extraschedular and TDIU Concerns The Board has carefully reviewed and considered the Veteran's lay statements regarding the severity of his right and left upper extremity peripheral neuropathy. Such were rendered during the examinations cited herein. He has offered no other lay statements. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal have been more severe than the assigned ratings reflect. He is competent to report decreased sensation, pain, and the sense of pins and needles or numbness and tingling. The Board finds him credible in this regard. Layno, 6 Vet. App. 465, at 470; Jandreau, 492 F.3d 1372, at 1376-77. The clinical evidence also contemplates the Veteran's descriptions of his symptoms. The lay testimony, competent and credible, and thus probative evidence in the present appeal; has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, the Board has considered whether higher ratings might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. The Board finds that the evidence of record demonstrates that prior to March 18, 2013, the Veteran's right and left upper extremity peripheral neuropathy warranted initial 20 percent ratings, 20 percent for each upper extremity. However, since March 18, 2013, the Board finds that the Veteran's right upper extremity peripheral neuropathy does not warrant a rating in excess of 40 percent, and his left upper extremity peripheral neuropathy does not warrant a rating in excess of 30 percent. 38 U.S.C.A. § 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Further, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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 extraschedular 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 extraschedular 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 Veteran's disabilities, considering both upper extremities, are productive only of numbness and tingling of the hands, trophic changes, shoulder and knuckle pain, and decreased sensation; symptoms specifically considered as the basis for determining that the Veteran demonstrates incomplete paralysis of the radial nerve, bilaterally. However, the Veteran's symptoms are not specifically included in the rating criteria. The rating criteria are therefore inadequate to evaluate the Veteran's disabilities, the threshold element of the three-part test under Thun has been met, and consideration of the second part is required. In this case, there is no evidence of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. The Veteran has not asserted that his disabilities have any impact on his employment, and during his April 2009 VA examination, reported that he is retired. He has denied any treatment, much less hospitalization. Again, he has complained only of numbness and tingling of the hands, trophic changes, shoulder and knuckle pain, and decreased sensation. The Board finds that such does not rise to the level of an exceptional or unusual disability picture. Thus, the second part of the three-part test under Thun has not been met and referral for consideration of an extraschedular rating is not warranted. Lastly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable. At the time of the April 2009 VA examination, the examiner reported that the Veteran's symptoms did not have an effect on his daily activities, and the Veteran reported that he was retired. The Veteran has not asserted that his bilateral upper extremity peripheral neuropathy renders it impossible to follow a substantially gainful occupation. Therefore, the Board finds that further consideration of a TDIU is not warranted. ORDER An initial 20 percent rating, and no more, is granted for service-connected right (major) upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II. Since March 18, 2013, a rating in excess of 40 percent for service-connected right (major) upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II is denied. An initial 20 percent rating, and no more, is granted for service-connected left upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II. Since March 18, 2013, a rating in excess of 30 percent for service-connected left upper extremity peripheral neuropathy secondary to service-connected diabetes mellitus Type II is denied. REMAND A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In May 2011, the Board remanded the issue of entitlement to service connection for amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II, for a nexus opinion to determine if the Veteran's diagnosed amblyopia was related to service, or pre-existed service or if any other of his claimed eye disorders (bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia) were related to service. In May 2012, a VA eye examination was performed, addressing the Board's requested nexus questions. In January 2013, however, the Board noted that in the Veteran's initial claim, received in March 2009, he claimed service connection for a vision disorder related to his service connected diabetes mellitus. Therefore, in addition to considering the Veteran's service connection claim on a direct basis, the Board must also consider his claim on a secondary basis. Service connection is permissible on a secondary basis for disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board noted that the VA examiner, in May 2012, was not requested to address whether any of the Veteran's several eye disabilities are related to or aggravated by his service connected diabetes mellitus Type II. Thus, the Board determined that additional medical information was required in order that all possible theories of entitlement to service connection may be considered. McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.310 (2012). In March 2013, a VA examiner opined that the Veteran's amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia), were not related to his diabetes mellitus Type II. However, the examiner did not sufficiently address the issue of whether such were aggravated by his diabetes mellitus Type II. Thus, on remand, a corrective addendum to the March 2013 VA examination report is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the examiner who conducted the VA eye examination in March 2013. If the March 2013 examiner, or a suitable substitute, is not available; or if the March 2013 examiner determines that a new physical examination is required, so schedule the Veteran. The examiner must opine, considering the clinical and lay evidence of record, as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's eye disabilities, amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, have been aggravated, made permanently worse beyond the natural progression of the disease, by his service-connected diabetes mellitus Type II. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated' in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: To the extent possible, the requested opinions on aggravation should assess the level of severity of the Veteran's eye disabilities both before and after the aggravating effects of service-connected diabetes mellitus Type II, if any. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. Review the examination report or addendum to ensure that it is in complete compliance with the directives of this remand. If it is deficient in any manner, corrective procedures must be implemented. 3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim of entitlement to service connection for amblyopia, right, bilateral optic nerve head drusen, bilateral nuclear sclerotic cataracts, and bilateral presbyopia, to include as secondary to service-connected diabetes mellitus Type II, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a SSOC and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination that may be requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs