Citation Nr: 1336623 Decision Date: 11/08/13 Archive Date: 11/22/13 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 a disability rating in excess of 20 percent as of September 11, 2012 for service-connected peripheral neuropathy of the right lower extremity. 2. Entitlement to an initial compensable disability rating prior to September 11, 2012 and a disability rating in excess of 10 percent as of September 11, 2012 for service-connected peripheral neuropathy of the right upper 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 and in September 2013 to readjudicate the claim. The RO continued the denial of the claims as reflected in the April 2013 and September 2013 supplemental statement of the cases and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. In October 2013, prior to the promulgation of a decision in the appeal, the Veteran apprised VA that he construed the April 2013 code sheet that granted a separate 20 percent disability rating for peripheral neuropathy of the right lower extremity as complete grant of his pending appeal and he requested that VA close his appeal. 2. The preponderance of the evidence shows that the Veteran's service-connected peripheral neuropathy of the right upper extremity is characterized by mild impairment throughout the entire appeal period. CONCLUSIONS OF LAW 1. As the Veteran has expressed complete satisfaction with the rating assigned to his peripheral neuropathy of the right lower extremity, there remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C.A. §§ 7104(a), 7105(d)(5) (West 2002); AB v. Brown, 6 Vet. App. 35 (1993). 2. The criteria for an initial rating of 10 percent prior to September 11, 2012 for service-connected peripheral neuropathy of the right upper extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515 (2013). 3. The criteria for an initial rating in excess of 10 percent as of September 11, 2012 for service-connected peripheral neuropathy of the right upper extremity 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 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran has expressed his total satisfaction with his pending appeal regarding the issue of entitlement to an increased rating for peripheral neuropathy of the right lower extremity. Thus, there remain no allegations of errors of fact or law for appellate consideration. By way of history, following receipt of the January 2012 statement of the case, the Veteran filed a substantive appeal later that same month, appealing the issue of entitlement to a compensable disability rating for service-connected peripheral neuropathy of the right lower extremity. The Board remanded the claim in August 2012 for further development and in September 2013 to readjudicate the claim through a supplemental statement of the case. The Board notes that the rating decision in April 2013 did not specifically address the issue of entitlement to a compensable disability rating for service-connected peripheral neuropathy of the right lower extremity; however, the code sheet reveals that the RO granted a separate disability rating of 20 percent, effective September 11 2012 with respect to that issue on appeal. The supplemental state of the case dated in September 2013 recognized that the Veteran's current peripheral neuropathy of the right lower extremity is evaluated as 20 percent disabling for moderate symptoms and determined that the evidence does not show that a disability rating in excess of 20 percent is warranted. Thereafter, VA received a written statement from the Veteran requesting an explanation as to why VA keeps referring to an increase of a 20 percent disability rating is denied when his personal records reflect that his right lower extremity is rated with his diabetes mellitus as 20 percent disability and not a separate 20 percent for the right lower extremity. He also noted that ebenefits reflects that the rating for the right lower extremity is rated separately as 20 percent disabling. The Veteran stated that "If my records are wrong and somewhere along the line I was awarded a separate 20% for my right lower extremity, then I thank you and would like to close this appeal." Although the Veteran was not notified of the increase disability rating to 20 percent for his service-connected peripheral neuropathy of the right lower extremity in a rating decision, the code sheet reflects that the RO granted a separate 20 percent disability rating effective September 11, 2012. While each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less than the maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court explained that it did not hold that a claimant may never limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. See Id. at 39 cf. Hamilton v. Brown, 4. Vet. App. 28, 544 (1993) ("where ... the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative"). The Veteran has not been awarded the highest disability allowed for his service-connected peripheral neuropathy of the right lower extremity. Nonetheless, the Veteran clearly expressed that he wished to close the appeal if he was granted a separate disability rating for his peripheral neuropathy of the right lower extremity at any time during the appeal the appeal. In light of the foregoing, no allegations of error of fact or law remain for appellate consideration with respect to issue of entitlement to an increased rating for peripheral neuropathy of the right lower extremity on appeal. Accordingly, the Board does not have jurisdiction to review this matter, and it must be dismissed. II. 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) (2013). 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 right 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) (2013). 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 right upper extremity to include any effects on employments. The claim was remanded in September 2013 to readjudicate the issue after the July 2013 VA examination. A September 2013 supplemental statement of the case readjudicated that the claim with consideration of the July 2013 VA examination. Accordingly, the Board finds that there has been substantial compliance with the August 2012 and September 2013 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 claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. III. 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 (2013). 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 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2013). 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 right upper extremity is currently rated under Diagnostic Code 8515 (2013), 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. The Veteran is right hand dominant and therefore, his right upper extremity is considered the major 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 (2013). During the pendency of this appeal, the RO increased the disability rating assigned to the Veteran's peripheral neuropathy of the right upper extremity to 10 percent under Diagnostic Code 8515, effective September 11, 2012. The Board has considered whether the Veteran is entitled to a higher disability rating under the assigned stages of this appeal. Additionally, the Board has considered whether additional staging is appropriate. For reasons discussed in more detail below, the Board finds that the stages created by the RO are not appropriate in light of the competent medical evidence of record and that the Veteran is entitled to a 10 percent disability rating for the entire appeal period. The Veteran was provided with a VA examination in February 2010. He reported right wrist and hand pain with numbness. The examination revealed that the temperature and color of the right upper extremity were 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 right upper extremity. Deep tendon reflexes were normal. The examiner diagnosed the Veteran with peripheral neuropathy of the right upper extremity. A September 2010 letter from the Veteran's private physician indicated that the Veteran was currently being treated for 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 right upper extremity. Muscle, reflex and sensory testing of the right upper extremity were normal. Phalen's sign and Tinel's sign were negative for the right median nerve. The examiner determined that the Veteran's right median nerve was normal. The Veteran had a negative clinical evaluation of the right upper extremity. The examiner noted that an EMG conducted in November 2009 revealed that the right upper extremity was normal. 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 numbness, tingling and pain in his right hand and trigger finger. He has difficulty gripping and unscrewing jars. He has mild paresthesias and/or dysesthesias, mild numbness and mild intermittent pain of the right upper extremity. Muscle strength testing, reflex testing and sensory examination were normal for the right upper extremity. Phalen's sign and Tinel's sign were negative. The examiner determined that the Veteran had mild incomplete paralysis of the right 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 right upper extremity more closely approximates mild incomplete paralysis of median nerve throughout the entire appeal period. In this regard, the Veteran has consistently reported pain and numbness in his right hand. The VA examination in February 2010 indicates that the Veteran's peripheral neuropathy of the right upper extremity is mild as the physical examination was normal, but the Veteran reported subjective pain and numbness. The September 2010 private physician and the July 2013 VA examiner indicated that the Veteran's peripheral neuropathy of the right upper extremity is mild. The Board has determined that the Veteran's peripheral neuropathy of the right upper extremity is not manifested by moderate incomplete paralysis at any time during the appeal period as the medical and lay evidence of record reveals that the Veteran's peripheral neuropathy of the right upper has had an insignificant impact on his ability to work or engage in activities of daily living. Thus, the Board concludes that the Veteran's peripheral neuropathy of the right upper extremity more closely approximates a 10 percent disability rating for mild incomplete paralysis of the median nerve of the major extremity 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 right upper extremity is inadequate. A comparison between the level of severity and symptomatology of the Veteran's peripheral neuropathy of the right upper extremity 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 right upper extremity 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 right upper extremity 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. (CONTINUED ON NEXT PAGE) ORDER The appeal is dismissed with respect to the issue of entitlement to an initial compensable disability rating prior to September 11, 2012 and a disability rating in excess of 20 percent as of September 11, 2012 for service-connected peripheral neuropathy of the right lower extremity. Entitlement to an initial disability rating of 10 percent prior to September 11, 2012 service-connected peripheral neuropathy of the right upper extremity 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 right upper extremity is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs