Citation Nr: 1420007 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 09-40 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to an increased initial disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. Entitlement to an increased initial disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1964 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This decision granted service connection for right and left upper extremity peripheral neuropathies, with noncompensable ratings effective October 19, 2007. In January 2009, the Veteran filed a notice of disagreement (NOD) with the assigned ratings. In September 2009, the RO issued a statement of the Case (SOC) continuing the noncompensable ratings. In October 2009, the Veteran perfected an appeal and requested a hearing before the Board. In April 2011, the Veteran testified before the Board at the RO in St. Petersburg, Florida. A transcript of the hearing is associated with the claims file and has been reviewed. In December 2011, the Board remanded the appeal for additional development, to include a VA examination to assess the severity of the Veteran's peripheral neuropathies. In April 2012, the Appeals Management Center (AMC) issued a rating decision granting initial increased ratings of 10 percent for the Veteran's right and left upper extremity peripheral neuropathies. Because this was a partial grant of benefits, the RO issued a supplemental statement of the case (SSOC) explaining its denial of an evaluation greater than 10 percent. The Veteran continues to seek an increased evaluation for these disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Board has reviewed both the Veteran's physical claims file and the Veteran's files on the Virtual VA and VBMS electronic file systems, to ensure a total review of the evidence. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's peripheral neuropathy of the right upper extremity has resulted in a disability analogous to no more than mild incomplete paralysis a peripheral nerve. 2. Throughout the rating period on appeal, the Veteran's peripheral neuropathy of the left upper extremity has resulted in a disability analogous to no more than moderate incomplete paralysis a peripheral nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right upper extremity (major) peripheral neuropathy have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2013). 2. The criteria for an initial rating of 20 percent for left upper extremity (minor) peripheral neuropathy have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, with respect to the increased initial evaluation claim on appeal, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In any event, VA's duty to notify has been satisfied through a notice letter dated in January 2008, which fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records and personnel records are associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. Additionally, the Veteran was provided VA examinations relevant to the disabilities on appeal in October 2007, October 2010, and January 2012. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds these examinations adequate for the purpose of evaluating the severity of the Veteran's bilateral upper extremity peripheral neuropathies, as they involved a review of the Veteran's pertinent medical history, a clinical evaluation of the Veteran, and an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Court in Fenderson held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that in such cases, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, assignment of separate ratings for separate and distinct symptomatology is not precluded where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is currently service connected for peripheral neuropathies of the right and left upper extremities and has been assigned 10 percent disability ratings for each extremity under the provisions of Diagnostic Code 8515 of VA's Rating Schedule. 38 C.F.R. § 4.124a. Diagnostic Code 8515 pertains to diseases of the median nerve. Under that regulation, complete paralysis, manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm, flexion of the wrist weakened, or pain with trophic disturbances warrants a 70 percent disability rating for the major (dominant) extremity and a 60 percent disability rating for the minor (non-dominant) extremity. Incomplete paralysis with respect to the major extremity warrants a 50 percent disability rating if severe, a 30 percent disability rating if moderate, and a 10 percent disability rating if mild. Incomplete paralysis with respect to the minor extremity warrants a 40 percent disability rating if severe, a 20 percent disability rating if moderate, and a 10 percent disability rating if mild. 38 C.F.R. § 4.124a. The term "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 a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Right- or left-handedness for the purpose of a dominant-side disability rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. The evidence reflects that the Veteran's right hand is dominant. In October 2007, the Veteran underwent a VA examination for peripheral nerves. The Veteran reported tingling in both hands that was chronic and had gradually worsened over time. Treatment consisted of medication, the response to which was fair. There was no history of hospitalization, surgery, trauma, or neoplasm related to his peripheral nerves. Physical examination revealed normal strength in the upper extremities. Sensation was decreased on the thumb of both hands only, and did not follow any dermatome. Response to vibration, pain, light touch and position sense was normal bilaterally. Muscle reflexes of the left and right biceps and triceps were hypoactive (1+). Muscle tone was normal, without atrophy. There were no tremors, tics, or other abnormal movements. Joint function was unaffected. Neuralgia was present; however, nerve paralysis and neuritis were absent. The Veteran was diagnosed with right and left upper extremity peripheral neuropathies due to diabetes mellitus, type II (DMII). The Veteran' upper peripheral neuropathies were assessed as having no significant effect on his occupation. There were mild effects on usual daily activities, to include chores, shopping, exercise, and sports; however, there was no effect on recreation, travel, feeding, bathing, dressing, toileting, or grooming. Based on this examination and opinion, the RO awarded service connection for the Veteran's bilateral upper extremity peripheral neuropathies, which it rated as noncompensably disabling. In October 2010, the Veteran was afforded another VA examination. During the examination, the Veteran reported that the tingling and numbness in his hands had worsened. He also reported that his hands had become weaker. The course since onset had been progressively worse. Treatment consisted of medication, the response to which was assessed as fair. There was no history of hospitalization, surgery, trauma, or neoplasm related to his peripheral nerves. Physical examination revealed normal strength in the upper extremities. Sensory testing showed that the median nerves of the upper right and left extremities were affected. Position sense and response to vibration was normal. Response to pain and light touch was decreased on the lateral aspect of hand/palm. There were no dysesthesias were present. Muscle reflexes of the left and right biceps and triceps, brachioradialis, finger jerk, were normal (2+). Muscle tone was normal, without atrophy. There were no tremors, tics, or other abnormal movements. Joint function was unaffected by the nerve disorder. Phalen's sign test was positive for carpal tunnel syndrome in the left extremity. Neuralgia was present; however, nerve paralysis and neuritis were absent. Based upon physical examination, and electromyography (EMG) and nerve conduction studies conducted in March 2010, the examiner diagnosed the Veteran with bilateral upper extremity peripheral neuropathies as due to DMII; mild left carpel tunnel syndrome; and left C8 radiculopathy. The examiner indicated that the Veteran's hand tingling and numbness would interfere with his occupation as a truck driver, but not "with sedentary desk jobs since his neuropathy is mild." There were no effects on usual daily activities. In January 2012, the Veteran underwent another VA examination. At the examination, the Veteran reported decreased sensation, numbness, tingling, and pain in both hands, the left hand more affected than the right. He stated that his neuropathy symptoms were continuous. The Veteran also reported problems with grasping and holding objects tightly. The Veteran rated his symptoms as "moderate" on the right and "severe" on the left. The report reflects that he has been treated with B6 and wrist splints without much improvement. Symptoms attributable to the Veteran's upper extremity peripheral neuropathies included intermittent dull pain, paresthesias and/or dysesthesias, and numbness, which the Veteran rated as "moderate" on the right and "severe" on the left. Objective clinical testing revealed normal strength bilaterally for elbow flexion and extension, wrist flexion and extension, grip and pinch of thumb to index finger. There was no evidence of muscle atrophy. Reflexes in the biceps, triceps and brachioradialis were normal (2+) bilaterally. Sensory examination for light touch was normal bilaterally for shoulders and inner/outer forearm, but decreased bilaterally for fingers. There was decreased light touch and vibratory sensation on the thumbs and index fingers bilaterally; however, sensation on the other fingers was within normal limits. Abnormal sensation also involved both thenar eminences and spread upwards to wrist level bilaterally, but normalized just above the wrists bilaterally. The examiner opined that the clinical pattern was most consistent with bilateral carpal tunnel syndrome (median nerve dysfunction at wrist level). There were no trophic changes attributable to peripheral neuropathy. Palen's sign test and Tinel's sign test were negative. The Veteran's radial, median, ulnar, musculocutaneous, circumflex, and long thoracic nerves were normal bilaterally, as were the upper, middle, and lower radicular groups. The examiner concluded that the "preponderance of the objective clinical evidence" indicated that the Veteran had a mild neuropathy of both upper extremities, primarily affecting the thumbs and index fingers bilaterally. However, in consideration of the Veteran's reportedly "severe" left hand symptoms and "moderate" right hand symptoms, the examiner's "overall impression" was "moderate" neuropathy (carpal tunnel syndrome) of left hand and "mild" carpal tunnel syndrome right hand. A review of the Veteran's VA medical records shows that he is treated for numerous disabilities, including his right and left upper extremity peripheral neuropathies. On the occasions that he received treatment for his upper extremities, the Veteran reported symptoms of pain, tingling, and numbness. There is no indication from the treatment records that the Veteran's symptoms are more severe than those reported at his VA examinations. After a careful review of the evidence of record, the Board finds that the Veteran's right upper extremity peripheral neuropathy does not warrant an initial rating in excess of 10 percent; however, an initial increased rating of 20 percent is warranted for the left upper extremity peripheral neuropathy. With regard to the Veteran's right upper extremity peripheral neuropathy, the aforementioned medical evidence and findings demonstrate little functional impairment. Indeed, the medical evidence of record suggests a disability that is no more than "mild," which is precisely the criterion for the assignment of a 10 percent rating under Diagnostic Code 8515. At his most recent VA examination, in January 2012, the Veteran reported decreased sensation, numbness, tingling, and pain in both hands, the left hand more affected than the right. He stated that these symptoms were continuous, and also reported problems with grasping and holding objects tightly. Sensory examination revealed decreased light touch and vibratory sensation on the thumbs and index fingers bilaterally, as well as abnormal sensation in the thenar eminences and wrists. Other objective testing, however, revealed normal reflexes, normal muscle tone, and normal muscle strength, including grip and pinch strength. After taking into account the Veteran's subjective rating of "moderate" symptoms, the examiner assessed the Veteran's right upper extremity disability as "mild." Despite the Veteran's assertions to the contrary, the Board finds his current symptoms are wholly sensory and are best described as mild, warranting the assigned 10 percent rating, but no more. The Veteran's symptoms, alone, do not constitute evidence which is sufficient to characterize the right upper extremity peripheral neuropathy as moderate. In reaching this conclusion, the Board acknowledges the Veteran's assertions that his symptoms are more severe than that reflected by the current disability ratings. See, e.g., January 2009 NOD; April 2011 hearing transcript. The Board finds that the Veteran is certainly competent to discuss the severity of his symptomatology. As a lay person, however, the Board gives more weight to the specific objective findings obtained through specialized testing and physical examinations. Such matters require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Board finds that an initial disability rating in excess of 10 percent for the Veteran's right upper peripheral neuropathy is not warranted. A higher rating under Diagnostic Code 8515 is not for application, as there is no evidence of even moderate incomplete paralysis of the right upper extremity. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. With regard to the Veteran's left upper peripheral neuropathy, the medical evidence of record similarly demonstrates little functional impairment. In fact, the medical findings of the Veteran's January 2012 VA examination pertaining to the left extremity were identical to the right extremity, except for the severity of the sensory symptoms reported by the Veteran. As with the right upper extremity, the left upper extremity was shown to have sensory deficits in the thumb, index finger, thenar eminence, and wrist, but normal reflexes, muscle tone, and muscle strength, including grip and pinch strength. Although the examiner concluded that the "preponderance of the objective clinical evidence" indicated a mild left upper extremity peripheral neuropathy, he modified his opinion to "moderate" to account for the Veteran's subjective rating of "severe" symptoms. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's left upper extremity peripheral neuropathy more closely approximates a moderate disability, warranting a rating of 20 percent. However, as the Veteran's symptoms are wholly sensory, a higher rating under Diagnostic Code 8515 is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Consideration has been given to assigning staged ratings. However, at no time during the period in question have the disabilities on appeal warranted a higher schedular rating than that assigned. Hart, supra. In sum, based on the evidence of record, the Board finds that a 10 percent disability rating is appropriate for the Veteran's right upper extremity peripheral neuropathy, and a 20 percent disability rating is appropriate for the Veteran's left upper extremity peripheral neuropathy. 38 C.F.R. § 4.24a, Diagnostic Code 8515 (2013). Extra-schedular consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The record shows that the manifestations of the disabilities on appeal are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the bilateral upper extremity peripheral neuropathies would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization related to those disabilities. The Board acknowledges that the Veteran is unable to work as a result of his service-connected disabilities in combination and observes that he was awarded TDIU in January 2011. There is no indication, however, that the Veteran's bilateral upper extremity peripheral neuropathies by themselves cause a marked interference with employment beyond that contemplated by the currently assigned ratings. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not warranted. ORDER For the entire rating period, an initial disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. For the entire rating period, an increased initial disability rating of 20 percent for peripheral neuropathy of the left upper extremity is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs