Citation Nr: 1332206	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  10-41 311	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a rating higher than 10 percent for peripheral neuropathy of the right upper extremity.  

2.  Entitlement to a rating higher than 10 percent for peripheral neuropathy of the left upper extremity.  

3.  Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability (TDIU).  


REPRESENTATION

Veteran represented by:  North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from April 1969 to November 1970.  

This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran's notice of disagreement was received in March 2010, and after the RO issued a statement of the case in September 2010, the Veteran perfected his appeal to the Board with a substantive appeal filed in October 2010.  

In a February 2013 decision, the Board promulgated a decision with respect to a claim for a higher rating for posttraumatic stress disorder.  The Board also remanded the case to the RO for additional development of the remaining issues listed on the first page of this document.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998). 

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  For the period considered in this appeal, the Veteran's peripheral neuropathy of the right upper extremity was manifested by mild sensory deficit of the lower radicular group.

2.  For the period considered in this appeal, the Veteran's peripheral neuropathy of the left upper extremity was manifested by mild sensory deficit of the lower radicular group.


CONCLUSIONS OF LAW

1.  The criteria for a rating of 20 percent, and no higher, for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8612 (2013). 

2.  The criteria for a rating of 20 percent, and no higher, for peripheral neuropathy of the left upper extremity have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8612 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following:  (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are:  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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated).  

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided post-adjudication VCAA notice by letter, dated in April 2009.  The Veteran was notified of the type of evidence needed to substantiate the claims for a higher rating, namely, evidence to show that the disabilities were worse and the effect the disabilities had on employment.  The Veteran was also notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (claim-specific notice, namely, a worsening or increase in severity of the disability and the effect that worsening has on employment). 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  Here, the Veteran had the opportunity to appear and testify at a hearing, but he declined a hearing.  The RO has obtained the Veteran's VA treatment records.  The Veteran has not identified any other pertinent records, such as private medical reports, for the RO to obtain on his behalf.

Further, VA has conducted necessary medical inquiry in an effort to substantiate the claims for higher ratings.  38 U.S.C.A. § 5103A(d).  The Veteran was afforded VA examinations in June 2009 and March 2013, to determine the severity of his disabilities, and the impact of the Veteran's peripheral neuropathy on his ability to work was assessed on the latter examination.  There is no evidence in the record dated subsequent to the VA examinations that shows a material change in the disabilities to warrant a reexamination.  38 C.F.R. § 3.327(a). 

As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.

II.  Merits of the Claims for Higher Ratings

Principles of Rating Peripheral Neuropathy Disabilities

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  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.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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. 

Furthermore, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function.  38 C.F.R. § 4.12.  In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory.  Id.  Special consideration is given to complete or partial loss of use of one or more extremities.  38 C.F.R. § 4.124a.

The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a. 

Peripheral neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at time excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  38 C.F.R. § 4.123. 

The terms "mild," "moderate," and "severe" under applicable diagnostic codes are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

Analysis

The Veteran asserts that higher ratings are warranted for his peripheral neuropathy of the upper extremities than what is reflected by his currently assigned disability ratings.  At present, his peripheral neuropathy of the right upper extremity is rated as 10 percent disabling, and his peripheral neuropathy of the left upper extremity is also rated as 10 percent disabling, with both disabilities evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8615, for mild neuritis of the median nerve.  Under Diagnostic Code 8515, 10 percent rating is assigned for mild incomplete paralysis in both the major and minor extremity.  For moderate incomplete paralysis, a 30 percent rating is warranted in the major extremity and a 20 percent rating is warranted in the minor extremity.  For severe incomplete paralysis, a 50 percent rating is warranted in the major extremity and a 40 percent rating in the minor extremity.  Complete paralysis in the major extremity warrants a 70 percent disability, and complete paralysis in the minor extremity warrants a 60 percent disability.  38 C.F.R. § 4.124a.  Neuritis of the affected nerve is evaluated as incomplete and complete paralysis of the nerve.  38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8615. 

In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 8615.  Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  Here, as the medical evidence shows involvement of three peripheral nerves in the bilateral upper extremities, particularly affecting wrist function, the Board finds that Diagnostic Code 8612, dealing with neuritis relative to paralysis of the lower radicular group under Diagnostic Code 8512 is the most beneficial and most appropriate.  

Diagnostic Code 8512 provides the rating criteria for paralysis of the lower radicular group, and therefore neuritis and neuralgia of that nerve pursuant to Diagnostic Codes 8612 and 8712, respectively.  38 C.F.R. § 4.124a.  Under Code 8512, a 20 percent rating is assigned for mild incomplete paralysis in the major or minor extremity.  For moderate incomplete paralysis, a 40 percent rating is warranted in the major extremity and a 30 percent rating in the minor extremity.  For severe incomplete paralysis, a 50 percent rating is warranted in the major extremity and a 40 percent rating is warranted in the minor extremity.  The highest respective ratings of 70 percent regarding the majore extremity and 60 percent regarding the minor extremity are reserved for complete paralysis.  With respect to the lower radicular group, complete paralysis means all intrinsic muscles of the hand, and some or all of the flexors of the wrist and fingers, are paralyzed (substantial loss of use of the hand).  38 C.F.R. § 4 .124a.

For the period considered in this appeal, the Board finds that the Veteran's neuritis of the right and left upper extremities is shown to be mild in degree, and no worse, after application of the evaluation criteria, and thus a 20 percent rating, and no higher, is warranted for each upper extremity under Diagnostic Code 8612.  

Objective demonstration from VA medical records shows the nerve impairment in the upper extremities is characterized mainly by sensory disturbances and pain in the wrist region (or lower radicular group).  At the time of a VA examination in June 2009, the Veteran complained of paresthesias and pain in his hands.  He had no problems with activities of daily living.  He reportedly was not working at that time, having been laid off.  The examiner noted that the affected nerves in the upper extremities were the median and ulnar nerves.  On neurological evaluation, in regard to any motor or sensory function, there was decreased sensation to light touch in the fingers, hands, and wrists, as well as the distal forearms, bilaterally.  There was no paralysis.  There was neuralgia but no atrophy.  The diagnosis was diabetic neuropathy.  

At the time of a VA examination in March 2013, the Veteran reported that for the past few years he had a tingling sensation and numbness, which has gotten worse.  He stated that he took gabapentin for the neuropathy with minimal effect.  He was noted to be right-hand dominant.  Regarding symptoms in his upper extremities, the Veteran complained of moderate paresthesias and/or dysesthesias and moderate numbness.  He denied constant or intermittent pain.  On neurological evaluation of the upper extremities, motor strength was 5/5 in the elbow, wrist, and finger pinch (thumb to index).  Deep tendon reflexes in the upper extremities were normal in the biceps and triceps.  On light touch/monofilament testing, the shoulder area was normal, and the inner/outer forearm and hand/fingers were decreased.  Position sense and vibration sensation in both upper extremities were decreased.  There was no muscle atrophy and no trophic changes.  EMG studies were not deemed necessary.  In characterizing the severity of the affected nerves, the examiner found that there was mild incomplete paralysis of the radial, median, and ulnar nerves in both upper extremities.  The examiner found that the Veteran's diabetic peripheral neuropathy impacted his ability to work, noting that the Veteran had reported he had to quit his job as an auto mechanic in 2009 due to his peripheral neuropathy.  He described dropping tools at work and being slow in working with his hands.  He had difficulty with dexterity of the hands and he burned his hands on hot tail pipes on account of his decreased hand sensation.  The examiner stated that the Veteran's peripheral neuropathy impacted his work by limiting him in grasping no more than five pounds with each hand and lifting no more than 25 pounds with his hands.  

VA outpatient records show that the Veteran took gabapentin for his neuropathy.  In June 2012 and September 2012, it was noted that the Veteran had tingling and numbness in both hands.  Otherwise, there is little mention of complaints or evaluation of symptoms relative to neuritis. 

In light of the foregoing evidence, it is the Board's judgment that the neuritis of the Veteran's upper extremities was not more than mild in severity.  While there was some complaint of pain associated with his condition, it was not a symptom manifestation on the most recent VA examination and was not shown to be a recurring problem in VA outpatient records.  As such, the Veteran's disabilities are most appropriately identified under the diagnostic code as neuritis, rather than neuralgia.  Further, while the neuritis is shown to restrict him in terms of his ability to grasp with each hand and lifting with both hands, the deficit shown on objective testing was basically sensory in nature, without motor or reflex involvement.  The examiner in March 2013 specifically characterized the severity of the nerve impairment as mild for each of the affected nerves; the earlier examiner did not describe the severity of the nerve impairment in such terms that could readily be equated to the evaluation criteria of applicable diagnostic codes.  The disability picture approximates the criteria for mild incomplete paralysis of the nerves of the lower radicular group (incorporating impairment of the radial, median, ulnar nerves) under Diagnostic Code 8512.  Therefore, under Code 8512, neuritis of the lower radicular group that equates to mild complete paralysis, and no worse, is assigned a 20 percent rating for each upper extremity under Code 8612.  There is not another diagnostic code that would afford a higher rating for mild incomplete paralysis of an affected nerve. 

In sum, as indicated by VA examination, the Veteran's right and left upper extremity neuritis is most properly characterized as mild in severity.  The clinical findings demonstrate that the deficit is sensory, as motor and reflexes were otherwise normal upon testing.  Under Diagnostic Code 8612, nerve impairment affecting the lower radicular group that is productive of mild incomplete paralysis satisfies the criteria for a 20 percent rating.  Given such findings, the Board concludes that for the period considered in this appeal the evidence supports the Veteran's claims for a rating of 20 percent and no higher; and in this way his claims are granted.  In arriving at this conclusion, the Board has considered the propriety of assigning "staged" ratings. 

Extraschedular Rating

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.  If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

A review of the record indicates that the Veteran was gainfully employed as an auto mechanic before he reportedly quit his job due to problems he was having with his peripheral neuropathy (trouble with hand dexterity and dropping tools).  While the Veteran asserts that higher ratings for his service-connected peripheral neuropathy of the upper extremities are warranted, and the Board agrees to the extent that his condition is of mild severity under criteria affecting the lower radicular group, the Board also finds that the most appropriate rating criteria for evaluating his disabilities reasonably describe his disability level and symptomatology.  Further, higher ratings are permitted where the symptoms are shown to be worse. 

In comparing the disability level and symptomatology to the Rating Schedule, the degrees of disability are contemplated by the Rating Schedule.  That is, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule.  Therefore, the assigned schedular ratings are adequate, and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). 


ORDER

A 20 percent rating, and no higher, is warranted for peripheral neuropathy of the right upper extremity.  A 20 percent rating, and no higher, is warranted for peripheral neuropathy of the left upper extremity.  To this extent, the appeal is granted, subject to laws and regulations governing payment of VA monetary benefits.  


REMAND

A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:  (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).

As a result of the decision, herein above, granting higher ratings for peripheral neuropathy of the upper extremities, the Veteran's current service-connected disabilities consist of posttraumatic stress disorder (30 percent disabling), peripheral neuropathy of the right upper extremity (20 percent disabling), peripheral neuropathy of the left upper extremity (20 percent disabling), diabetes mellitus with erectile dysfunction (10 percent disabling), peripheral neuropathy of the right lower extremity (10 percent disabling), and peripheral neuropathy of the left lower extremity (10 percent disabling).  With one 40 percent disability in combination (on account of disabilities of both upper and lower extremities considered as one disability), and with a combined rating for the disabilities of 70 percent (without the addition of the bilateral factor), the Veteran meets the schedular criteria for a TDIU.  38 C.F.R. § 4.16(a).  

Thus, the issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Stated another way, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

After reviewing the VA examiner's assessment in March 2013, the Board finds that the medical evidence of record is inadequate in which to decide the TDIU claim.  In his application for TDIU (VA Form 21-8940) in March 2009, the Veteran claimed his service-connected peripheral neuropathy of the hands and feet and his PTSD prevented him from securing or following any substantially gainful occupation.  He indicated that he last worked full time in January 2009 as an automobile technician at a car dealership, where he had been employed for nearly 10 years, and that he left his job on account of his service-connected disabilities.  He also indicated that he tried unsuccessfully from January 2009 to March 2009 to obtain employment since then at three different establishments as an auto technician.  He had the educational equivalent of up to one year of college, attending community college for a year beginning in 1995 and majoring in automotive mechanics.  

A VA examiner in June 2009 concluded that the Veteran's PTSD symptoms would not preclude sedentary or active employment.  A VA examiner in March 2013 noted the Veteran's former job as an auto mechanic, which he quit in 2009 after 10 years because he kept dropping tools and was slow in working with his hands due to his peripheral neuropathy.  The examiner concluded that the service-connected peripheral neuropathy of the upper and lower extremities caused some functional impairment (i.e., limitations in grasping no more than 5 lbs with each hand, lifting no more than 25 lbs with his hands, and walking no more than 75 yards before resting), but also found that sedentary employment was not impacted.  

In the Board's judgment, an addendum medical opinion that includes rationale that accounts for the Veteran's previous employment should be sought.  The VA examiner in March 2013 appears to believe the Veteran is employable for sedentary positions despite a peripheral neuropathy condition that places some restrictions on his functionality, but does not offer an opinion with respect to the type of job the Veteran held for many years in the automotive technician field.  Further, it is noted that the Veteran maintains he is unemployable, yet he has also indicated that after he quit his job as an auto technician in January 2009 due to service-connected disabilities he attempted to obtain another job in the same field (which would seem to indicate, at least at that time, he did not feel his service-connected disabilities would preclude gainful employment).  Thus, the record is unclear as to the Veteran's employability given his service-connected disabilities, particularly in regard to type of employment consistent with his background, education, and abilities. 

Accordingly, the case is REMANDED for the following actions:

1.  Return the claims file to the VA examiner who conducted the examination in March 2013, if available, or send to another VA examiner if he is not available or unable to address the following question, and request that an addendum opinion be prepared on the question of whether the Veteran is unemployable due to his service-connected peripheral neuropathy of the upper and lower extremities, particularly in consideration of his limited education and past working experience as an auto technician (i.e., a job that requires the use of the upper extremities and is not seemingly sedentary work).  A complete rationale should be provided for any opinion offered.  The Veteran's file should be made available to the examiner for review. 

2.  After the foregoing development has been completed, adjudicate the TDIU claim.  If the benefits sought are denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 

The Veteran has the right to submit additional evidence and argument on the matter 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 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).



______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs