Citation Nr: 1336783 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-15 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for polyneuropathy of the right upper extremity. 2. Entitlement to an increased rating in excess of 20 percent for polyneuropathy of the left upper extremity. 3. Entitlement to an increased rating in excess of 20 percent for polyneuropathy of the right lower extremity. 4. Entitlement to an increased rating in excess of 20 percent for polyneuropathy of the left lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The service-connected polyneuropathy of the bilateral upper extremities more closely approximates a manifestation of moderate incomplete paralysis of the radicular group with neuritis not characterized by muscle atrophy and constant pain. 3. The service-connected polyneuropathy of the bilateral lower extremities more closely approximates a manifestation of moderately severe incomplete paralysis of the sciatic nerve with neuritis not characterized by muscle atrophy and constant pain. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 40 percent, but no higher, for polyneuropathy of the right upper extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.6, 4.7, 4.21, 4.123, 4.124a, Diagnostic Code (DC) 8599-8513 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 30 percent, but no higher, for polyneuropathy of the left upper extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.6, 4.7, 4.21, 4.123, 4.124a, DC 8513 (2013). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 40 percent, but no higher, for polyneuropathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.6, 4.7, 4.21, 4.123, 4.124a, DC 8520 (2013). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 40 percent, but no higher, for polyneuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.6, 4.7, 4.21, 4.123, 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2013); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). Pursuant to the rating criteria for diseases of the peripheral nerves, paralysis of all radicular groups, the Veteran's service-connected polyneuropathy of the bilateral upper extremities is rated at 20 percent disabling, each, for the entire increased rating period on appeal. See 38 C.F.R. § 4.124a, DC 8513 (2013). Complete paralysis warrants a 90 percent rating (major extremity) and an 80 percent rating (minor extremity). Incomplete paralysis is assigned ratings of 20 to 70 percent, depending on the severity of the claimant's symptoms. Severe incomplete paralysis warrants a 70 percent rating (major extremity) and a 60 percent rating (minor extremity). Moderate incomplete paralysis warrants a 40 percent rating (major extremity) and a 30 percent rating (minor extremity). Mild incomplete paralysis warrants a 20 percent rating (major and minor extremities). Id. In this case, VA examination reports document the Veteran is right-handed, thus his right upper extremity is the major extremity and his left upper extremity is the minor extremity. Pursuant to the rating criteria for diseases of the peripheral nerves, paralysis of the sciatic nerve, the Veteran's polyneuropathy of the bilateral lower extremities is rated at 20 percent disabling, each, for the entire increased rating period on appeal. See 38 C.F.R. § 4.124a, DC 8520 (2013). Complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. Severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Id. With regard to diseases of the peripheral nerves, the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral, the VA adjudicator is to combine with application of the bilateral factor. Id. The rating schedule does not define the terms "mild," "moderate," or "severe" as used in these diagnostic codes to describe the degree of deformity of the upper and lower extremities. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." See 38 C.F.R. § 4.6 (2013). Peripheral neuritis, 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 (2013). 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 for sciatic nerve involvement, for moderately severe incomplete paralysis. Id. On VA examination for peripheral nerves in February 2009, the Veteran reported a daily tingling and numbness sensation. Physical findings of the bilateral upper extremities showed, decreased monofilament and pain sensation, increased sensation for pain, normal reflexes, and absence of vibration sensation. Physical findings of the bilateral lower extremities showed, decreased monofilament touch and pain sensation, intact reflexes, with absence of vibration sensation. The examiner diagnosed the Veteran with mild neuropathy involving bilateral upper and lower extremities, providing evidence against these claims. On VA examination for peripheral nerves in February 2010, the Veteran reported symptoms of weakness, stiffness, pain, impaired coordination, numbness, paresthesias, and dysesthesias, to include tingling of the hands and feet. Physical findings of the bilateral upper and lower extremities revealed a muscle strength of 3 out of 5 with decreased strength on flexion and extension of each affected nerve. Sensory function showed the following results for each extremity. Decreased vibration and pain, with absence of light touch and position sense, of the entire right hand. Decreased vibration, pain, and light touch, with absence of position sense, of the entire left hand. Decreased vibration, pain, and light touch, with absence of position sense, of the entire right and left feet. The VA examiner also noted objective findings of decreased reflexes of the bilateral upper and lower extremities. The examiner indicated no muscle atrophy was present, abnormal muscle tone or bulk, other abnormal movements, or function of any joint affected by the nerve disorders. Nevertheless, the examiner diagnosed the Veteran with peripheral neuropathy of the bilateral upper and lower extremities with nerve dysfunction, to include the presence of neuritis and neuralgia. In April 2011, the Veteran underwent a VA Disability Benefits Questionnaire (DBQ) examination for genitourinary, brain and spinal cord, and Parkinson's disease in connection with other service-connected disabilities. Objective findings of the bilateral upper and lower extremities revealed peripheral pulses were normal. Motor function (muscle movement can overcome "normal" resistance), to include muscle strength, fine motor control, and muscle tone, was normal. Sensory function testing revealed findings of neuritis and abnormal pinprick test, position sense, and vibratory sense. Normal reflexes were also documented. Review of the VA outpatient treatment records also document the Veteran's complaints of numbness and tingling in both hands in August 2008 and December 2008. The August 2008 record also showed no muscle atrophy in either hand. In January 2008, there were findings of normal strength rating of the bilateral lower extremities and range of motion of the bilateral lower extremities was within normal limits. Physical findings in December 2010 also reveal normal muscle mass in the arms and legs, there may be subtle weakness of the leg, reflexes are diffusely impaired, and distal sensory impairment in arms and leg to pain, temperature, and vibration. Simply stated, after a review of the lay and medical evidence of record discussed above, the evidence of record shows the service-connected polyneuropathy of the bilateral upper and lower extremities is manifested by neuritis, characterized by sensory disturbances, loss of reflexes, but no muscle atrophy or constant pain, at times excruciating at this time. As a result, the Board finds that the service-connected polyneuropathy of the bilateral upper extremities more closely approximates a manifestation of moderate incomplete paralysis of the radicular group with neuritis, not characterized by muscle atrophy and constant pain. As such, an increased rating of 40 percent, but no higher, is warranted for the right upper extremity (major extremity) and an increased rating of 30 percent, but no higher, is warranted for the left upper extremity (minor extremity). See 38 C.F.R. §§ 4.123, 4.124a, DC 8513. The Board also finds that the service-connected polyneuropathy of the bilateral lower extremities more closely approximates a manifestation of moderately severe incomplete paralysis of the sciatic nerve with neuritis, not characterized by muscle atrophy and constant pain. As such, an increased rating of 40 percent, but no higher, is warranted for the bilateral lower extremities. See 38 C.F.R. §§ 4.123, 4.124a, DC 8520. Furthermore, the Board finds that the lay and medical evidence of record demonstrates the Veteran still has active movement of the bilateral upper and lower extremities. As discussed above, the Veteran exhibited movement of his extremities at VA examinations and pursuant to VA outpatient treatment during the course of this appeal. As such, a higher rating for complete paralysis of the bilateral upper and lower extremities is not warranted. See 38 C.F.R. § 4.124a, DCs 8513, 8520. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to the claim on appeal as required by the United States Court of Appeals for Veterans Claims (Court). See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a rating higher than the currently assigned disability ratings for any period on appeal. The Board has considered the Veteran's reported history of symptomatology regarding the service-connected disabilities on appeal. The Board acknowledges he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses (in this regard, it is important for the Veteran to understand that it is the Veteran's statements that have provided the basis for the grants of his claims); nonetheless, he is not competent to identify a specific level of the service-connected disabilities on appeal according to the appropriate diagnostic codes. In this case, such competent evidence concerning the nature and extent of the service-connected disabilities on appeal has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). The Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability (TDIU) due to service-connected disability is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the Veteran has already been granted entitlement to TDIU, effective March 21, 2001 to April 4, 2011. The Veteran is assigned a schedular 100 percent rating as of April 5, 2011, as noted in the August 2012 rating decision. Therefore, any issue as to entailment to a TDIU rating on or after April 5, 2011 is rendered moot. See Green v. West, 11 Vet. App. 472 (1998); VAOGCPREC. 6-99, 64 Fed. Reg. 52,375. The effective date of this evaluation is not before the Board at this time. Lastly, an extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the schedular rating criteria contemplate the symptoms and impairment caused by the Veteran's service-connected polyneuropathy of the bilateral upper and lower extremities. The schedular rating criteria specifically provide for ratings based on his reported symptomatology, to include pain, weakness, sensory disturbances, and loss of reflexes. See 38 C.F.R. §§ 4.123, 4.124a, DCs 8513, 8520. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected disabilities on appeal is not required. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by March 2008 and October 2008 letters. In these letters, VA informed the Veteran that in order to substantiate a claim for an increased evaluation for his service-connected disabilities, the evidence must show that such disabilities have gotten worse. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letters told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the March 2008 and October 2008 letters letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's VA outpatient treatment records, private treatment records, statements from the Veteran and VA examination reports. In this regard, the VA examiners recorded pertinent examination findings and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative with regard to the nature and severity of the service-connected disabilities on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Based on the above, therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An increased rating of 40 percent, but no higher, for polyneuropathy of the right upper extremity is granted, subject to the criteria applicable to the payment of monetary benefits. An increased rating of 30 percent, but no higher, for polyneuropathy of the left upper extremity is granted, subject to the criteria applicable to the payment of monetary benefits. An increased rating of 40 percent for polyneuropathy of the right lower extremity is granted, subject to the criteria applicable to the payment of monetary benefits. An increased rating of 40 percent for polyneuropathy of the left lower extremity is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs