Citation Nr: 1328579 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-29 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable disability rating prior to September 11, 2012 and in excess of 10 percent as of September 11, 2012 for service-connected peripheral neuropathy of the left upper extremity with carpal tunnel syndrome. 2. Entitlement to an initial compensable disability rating for service-connected peripheral neuropathy of the right upper extremity. 3. Entitlement to an initial compensable disability rating for service-connected peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded these matters in August 2012 for further evidentiary development. The RO continued the denial of the claims as reflected in the April 2013 and July 2013 supplemental statement of the cases and returned these matters to the Board for further appellate consideration. The issues of entitlement to an initial increased rating for peripheral neuropathy of the right upper extremity and peripheral neuropathy of the right lower extremity are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence shows that the Veteran's service-connected peripheral neuropathy of the left upper extremity with carpal tunnel syndrome is characterized by mild impairment throughout the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent prior to September 11, 2012 for service-connected peripheral neuropathy of the left upper extremity with carpal tunnel syndrome have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515 (2012). 2. The criteria for an initial rating in excess of 10 percent as of September 11, 2012 for service-connected peripheral neuropathy of the left upper extremity with carpal tunnel syndrome have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is appealing the initial disability rating assignment for peripheral neuropathy of the left upper extremity. The September 2010 rating decision granted the Veteran's service connection claim and therefore, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in the September 2010 decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment 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. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The January 2012 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating neurological conditions, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. Therefore, the Veteran was informed of what was needed not only to achieve the next- higher schedular ratings, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability on appeal. With respect to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, Social Security disability records, VA examination reports dated in February 2010, September 2012 and July 2013 and lay statements from the Veteran. The VA examination reports reflect that the examiners reviewed the claims file, obtained an oral history from the Veteran of his peripheral neuropathy symptoms and evaluated the Veteran. The examiners documented in detail the claimed and observed symptoms and the effect those symptoms have on his daily life and employment. Accordingly, the VA examinations are adequate for rating purposes. This issue was previously remanded in August 2012 to provide the Veteran with another VA examination to determine the current severity of the Veteran's service-connected peripheral neuropathy to include how it effects employment. The claims file contains VA examination reports dated in September 2012 and July 2013 that documents the Veteran's symptoms of peripheral neuropathy of the left upper extremity and carpal tunnel syndrome to include any effects on employments. Accordingly, the Board finds that there has been substantial compliance with the August 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the record presents no basis for further development to create any additional evidence to be considered in connection with the issue currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for an Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where, as in the instant case, the appeals arise from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Thus, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Id. The Veteran's service-connected peripheral neuropathy of the left upper extremity with carpal tunnel syndrome is currently rated under Diagnostic Code 8515 (2012), which evaluates incomplete paralysis of the median nerve. Under Diagnostic Code 8515, mild incomplete paralysis is rated 10 percent disabling on the major and minor side; moderate incomplete paralysis is rated 20 percent disabling on the minor side and 30 percent disabling on the major side; and severe incomplete paralysis is rated 40 percent disabling on the minor side and 50 percent disabling on the major side. 38 C.F.R. § 4.124a, Diagnostic Code 8515. As the Veteran is right hand dominant, his left upper extremity is considered the minor side under this diagnostic code. See July 2013 VA examination report. Incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Complete paralysis of the median nerve is marked by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the ulnar 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 disturbance. Id. The words "mild," "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). The Veteran was provided with a VA examination in February 2010. The examination revealed that the Veteran's left upper extremity was red. The temperature of the left upper extremity was normal. There was no evidence of ulcer or trophic changes to the extremity. Radial pulse was normal. Motor and sensory testing was normal for the left upper extremity. Deep tendon reflexes were normal. The examiner diagnosed the Veteran with peripheral neuropathy of the left upper extremity. A September 2010 letter from the Veteran's private physician indicated that the Veteran was currently being treated for left carpal tunnel syndrome and evidence of mild motor polyneuropathy. The Veteran underwent another VA examination in September 2012. The Veteran reported pain and numbness in the bilateral hand with trouble gripping and dropping things. The Veteran's symptoms include mild intermittent pain and numbness of the left upper extremity. Muscle and reflex testing were normal. The Veteran had decreased sensory examination in the left hand/fingers (C6-8). Phalen's sign and Tinel's sign was positive for the left median nerve. The examiner determined that the Veteran's symptoms more closely approximated mild incomplete paralysis of the left median nerve. The examiner determined that the Veteran's peripheral nerve condition did not impact his ability to work. The July 2013 VA examination reveals that the Veteran reported that he experiences a numb-like sensation in the left arm, intermittent sharp quick pain in the left hand and weakness. He has difficulty gripping and unscrewing jars. He also drops things from his left hand. The Veteran has mild intermittent pain of the left upper extremity. He has mild paresthesias and/or dysesthesias and mild numbness of the left upper extremity. Muscle strength testing, reflex testing and sensory examination were normal for the upper left extremity. Phalen's sign and Tinel's sign were negative. The examiner determined that the Veteran had mild incomplete paralysis of the left median nerve. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran's peripheral neuropathy of the left upper extremity with carpal tunnel syndrome more closely approximates mild incomplete paralysis of median nerve throughout the entire appeal period. In this regard, the Veteran has consistently reported his left hand has problems with gripping things and dropping things. He also described intermittent sharp pain in the left hand. The VA examiners and his private physician all indicate that his peripheral neuropathy and carpal tunnel syndrome of the left upper extremity are mild. The overall evidence of record reveals that the Veteran's peripheral neuropathy and carpal tunnel syndrome of the left upper extremity does not have a significant impact on his ability to work. Thus, the Board concludes that the Veteran's peripheral neuropathy of the left upper extremity with carpal tunnel syndrome more closely approximates a 10 percent disability rating for the entire appeal period. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected peripheral neuropathy of the left upper extremity with carpal tunnel syndrome is inadequate. A comparison between the level of severity and symptomatology of the Veteran's peripheral neuropathy of the left upper extremity with carpal tunnel syndrome with the established criteria found in the rating schedule for incomplete paralysis of the median nerve shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The evidence does not reflect that the Veteran's peripheral neuropathy of the left upper extremity with carpal tunnel syndrome has caused marked interference with employment beyond that is not already contemplated in the assigned evaluation. Furthermore, the record does not show that the Veteran's peripheral neuropathy of the left upper extremity with carpal tunnel syndrome has necessitated frequent periods of hospitalization during the appeal period or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an initial disability rating of 10 percent prior to September 11, 2012 is granted. Entitlement to an initial disability rating in excess of 10 percent as of September 11, 2012 for service-connected peripheral neuropathy of the left upper extremity with carpal tunnel syndrome is denied. REMAND With respect to the remaining issues on appeal, the Board observes that the Veteran was provided with a VA examination in September 2012. The AMC readjudicated the Veteran's claims in an April 2013 supplemental statement of the case. Thereafter, the Veteran was provided with another VA examination in July 2013 where the examiner evaluated the current severity of the Veteran's peripheral neuropathy of the right upper extremity and right lower extremity. Unfortunately, the AMC did not evaluate this new evidence with respect to the remaining issues on appeal and did not issue another supplemental statement of the case. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claims of entitlement to service connection for peripheral neuropathy of the right upper extremity and peripheral neuropathy of the right lower extremity, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs