Citation Nr: 1601723 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 11-16 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to higher initial ratings for right upper extremity diabetic peripheral neuropathy, evaluated as noncompensable from May 18, 2009, to November 13, 2009; as 20 percent disabling from that date; and as 40 percent disabling from April 2, 2015. 2. Entitlement to higher initial ratings for left upper extremity diabetic peripheral neuropathy, evaluated as noncompensable from May 18, 2009, to November 13, 2009; as 20 percent disabling from that date; and as 30 percent disabling from April 2, 2015. 3. Entitlement to higher initial ratings for right lower extremity diabetic peripheral neuropathy, evaluated as 20 percent disabling from January 16, 2008, to April 2, 2015 and as 60 percent disabling from that date. 4. Entitlement to higher initial ratings for left lower extremity diabetic peripheral neuropathy, evaluated as 10 percent disabling from January 16, 2008 to November 24, 2008; as 20 percent disabling from that date; and as 60 percent disabling from April 2, 2015. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2008 and August 2009 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2008, the RO granted service connection for right and left lower extremity neuropathy and rated each as 10 percent disabling from a January 16, 2008 claim date. On November 24, 2008, the Veteran requested a new evaluation. In August 2009, the RO granted service connection for right and left upper extremity peripheral neuropathy and rated each as noncompensable from May 18, 2009, the date of a VA examination report showing them. It continued the 10 percent ratings assigned for right and left lower extremity peripheral neuropathy. In April 2011, the RO increased the Veteran's right and left lower extremity peripheral neuropathy from 10 to 20 percent each, assigning an effective date of January 16, 2008 for the right lower extremity and November 24, 2008 for the left lower extremity. It increased the Veteran's right and left upper extremity peripheral neuropathy disabilities from noncompensable to 20 percent effective from November 13, 2009. In June 2015, the RO increased the Veteran's right and left lower extremity peripheral neuropathy from 20 percent to 60 percent each, effective from April 2, 2015, and increased his right and left upper extremity peripheral neuropathy to 40 and 30 percent, respectively, effective from April 2, 2015. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in September 2014, and a transcript of the hearing is associated with his claims folder. The case was remanded to the RO in December 2014. The issues of entitlement to higher ratings for right and left lower extremity diabetic peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From May 18, 2009 to November 13, 2009, the Veteran had mild but not moderate incomplete paralysis of all right and left upper extremity radicular groups. 2. From November 13, 2009 to April 2, 2015, the Veteran did not have moderate incomplete paralysis of all right and/or left upper extremity radicular groups. 3. From April 2, 2015, May 6, 1982, the Veteran has not had severe incomplete paralysis of all right and/or left upper extremity radicular groups. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but not higher, for right extremity diabetic peripheral neuropathy from May 18, 2009 to November 13, 2009 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8513 (2015). 2. The criteria for a 20 percent rating, but not higher, for left upper extremity diabetic peripheral neuropathy from May 18, 2009 to November 13, 2009 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8513 (2015). 3. The criteria for a rating higher than 20 percent for right extremity diabetic peripheral neuropathy from November 13, 2009, to April 2, 2015 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8513 (2015). 4. The criteria for a rating higher than 20 percent for left upper extremity diabetic peripheral neuropathy from November 13, 2009, to April 2, 2015 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8513 (2015). 5. The criteria for a ratings higher than 40 for right extremity diabetic peripheral neuropathy, respectively, from April 2, 2015 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8513 (2015). 6. The criteria for a ratings higher than 30 percent for left upper extremity diabetic peripheral neuropathy, respectively, from April 2, 2015 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8513 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluations following the grants of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311(Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112(2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; obtained VA medical opinions or examinations; and afforded the Veteran the opportunity to give testimony before the Board. The examinations and other evidence of record are adequate as they provide all information necessary to rate the disabilities at issue. The Board remanded for any additional records and another VA examination report in December 2014. All known and available records relevant to the issues being decided on appeal have been obtained and associated with the Veteran's claims record; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran appeals for higher ratings for his service-connected right and left upper extremity diabetic peripheral neuropathy. The ratings currently assigned are shown on the cover page. Service connection was granted for right and left upper extremity diabetic peripheral neuropathy in August 2009, effective from May 18, 2009. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Veteran's right (major) and left (minor) upper extremity diabetic peripheral neuropathy is rated and ratable under 38 C.F.R. § 4.124a, Diagnostic Code 8513, which is for all radicular groups, and under which a 20 percent rating is warranted for mild incomplete paralysis of them. The major or minor upper extremity warrants a 40 or 30 percent rating, respectively, when the incomplete paralysis is moderate, and a 70 or 60 percent rating, respectively, when the incomplete paralysis is severe. A 90 or 80 percent rating is warranted for complete paralysis of all radicular groups of the major or minor upper extremity, respectively. When there is complete paralysis of the upper radicular group, all shoulder and elbow movements are lost or severely affected. When there is complete paralysis of the middle radicular group, adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist are lost or severely affected. When there is complete paralysis of the lower radicular groups, all intrinsic muscles of hand, and some or all of flexors of wrist and fingers are paralyzed (substantial loss of use of hand). See 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8511, and 8512. At the time of the May 18, 2009 VA examination, the Veteran reported a tingling in his fingertips that was not as noticeable as similar symptoms in his lower extremities. He worked as a typist, and the numbness bothered him while typing, but did not interfere with his typing skills. On examination, no pathological reflexes were noticed. There was no loss of muscle mass or appreciable reduction in motor strength. The diagnoses were diabetic distal polysensory neuropathy in both lower extremities and to a lesser extent in both upper extremities, with a greater than 50 percent probability of being related to service-connected diabetes mellitus. On VA primary care on October 9, 2009, the Veteran reported that he was having a lot of numbness in his fingers, and difficulty typing, and that he thought it was the neuropathy. He was referred to a VA rehabilitation medicine service for possible nerve conduction study. On VA physical medicine rehab consultation on November 13, 2009, it was noted that the Veteran had been referred for numbness and tingling in fingertips. The Veteran complained of numbness and tingling in bilateral forearms and fingers. He had noted numbness and tingling in his legs and feet about 3 years ago, and subsequently noted development of numbness and tingling in his bilateral hands progressing. Currently, it extended from the elbow to the fingertips. The Veteran stated that numbness and tingling were present constantly. On examination, his muscle strength was 5/5 in the bilateral upper limbs. No muscle wasting was noted in the thenar or hypothenar muscles or along the upper limbs, bilaterally. The impression was bilateral upper limb neuropathy, suggestive of peripheral neuropathy. A November 27, 2009 VA electromyogram report notes that the Veteran was having numbness of fingertips. The electromyogram revealed evidence of mild sensory axonal loss type of neuropathy of the bilateral upper limbs which was seen in early diabetic polyneuropathy. A December 30, 2010 private medical record notes that diabetic neuropathy had started into the Veteran's hands. On VA evaluation in November 2011, monofilament testing of the Veteran's extremities revealed intact sensations. On VA evaluation on August 7, 2012, the Veteran had good strength in his upper extremities bilaterally. Sensation was slightly hyperesthetic on the left forearm. The assessment was diabetes mellitus neuropathy. On VA neurology consult on January 8, 2013, the Veteran reported lower extremity symptomatology. On examination, cold, light touch, and proprioception were intact. Sensory modalities were otherwise normal. Motor strength was 5/5 in all groups in all 4 extremities, and there were no fasciculations or focal atrophy. The Veteran's hands had good dexterity. Reflexes were 1+ throughout except for absent ankle reflexes bilaterally. On VA examination on May 2, 2013, during which the examiner specifically noted that the Veteran was right-hand dominant, the Veteran reported no left or right upper extremity constant pain, intermittent pain, paresthesias, or dysesthesias. He reported mild numbness of his right and left upper extremities. On neurological examination, he had normal upper extremity strength. His deep tendon reflexes were 2+ in the upper extremities. Light touch/monofilament testing was normal in the upper extremities. Position sense was normal in the right and left upper extremity. There was no muscle atrophy. Trophic changes were manifested by thinning of skin and loss of body hair in the lower 1/3 of the legs. The examiner indicated that the Veteran had mild incomplete paralysis of each median nerve and that his radial and ulnar nerves were normal bilaterally. The examiner indicated that he had no other pertinent physical findings, complications, conditions, signs, or symptoms related to the disabilities at issue. The examiner indicated that the Veteran's diabetic peripheral neuropathy impacted his ability to work and that his upper extremity neuropathy was mild. On VA neurology consult on August 25, 2014, the Veteran was well developed and had normal motor strength, tone, and bulk throughout. His reflexes were 2+ and equal at the biceps. Brachioradialis were absent. On private neurology evaluation in October 2014, examination of the Veteran revealed normal upper limb strength, bulk, and tone. There were no fasciculations. Reflexes were 2 symmetrically at the biceps, triceps, and brachioradialis. On VA peripheral neuropathy examination on April 2, 2015, the Veteran reported that he had no constant or intermittent pain, but complained of moderate paresthesias and/or dysesthesias and numbness in his right and left upper extremities. On neurologic examination, his right and left elbow flexion and extension strength were 5/5, as were right and left grip and pinch strength. Wrist flexion and extension were 4/5 bilaterally. Deep tendon reflexes were 2+ in the upper extremities. Light touch/monofilament sensation was normal in the shoulders, and decreased at the inner/outer forearm, hand/fingers bilaterally. Position sense was normal in the left and right upper extremities. Vibration sensation was decreased in the right and left upper extremities. Cold sensation was normal in the right and left upper extremities. Trophic changes were reflected by loss of hair in the distal 2/3rds of both legs with thin shiny skin. The examiner indicated that the Veteran had normal radial nerves bilaterally but that he had moderate incomplete paralysis of the right and left median and ulnar nerves. The examiner indicated that the Veteran had no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his upper extremity peripheral neuropathy. In the functional impact section, the examiner indicated that the Veteran was currently employed in a clerical job and that he would stand up and stretch his legs. He would grip a railing to climb steps because of weakness. His typing skills had deteriorated and he had to print instead of use cursive. Grasping sensation was weak in both hands. He dropped things, and he was to use special tip pens because of difficulty in applying pressure. Based on the evidence, the Board finds that from May 18, 2009 to November 13, 2009, when reasonable doubt is resolved in his favor, the Veteran had mild but not moderate incomplete paralysis of all radicular groups of each upper extremity warranting a 20 percent rating, but not higher, for each upper extremity's diabetic peripheral neuropathy. He complained of tingling in his fingertips on VA examination on May 18, 2009, and that the numbness bothered him bothered him while he was typing. Then, on October 9, 2009, he complained of a lot of numbness in his fingers, and difficulty typing. This, in the Board's judgment, is sufficient to find that he had mild incomplete paralysis of all radicular groups bilaterally from May 18, 2009 to November 13, 2009. Such was confirmed electrodiagnostically on November 27, 2009. No evidence supports the conclusion, however, that the Veteran had moderate incomplete paralysis of either upper extremity's radicular groups from May 18, 2009 to November 13, 2009. No complaints other than tingling and numbness were reported between May 18, 2009 and November 13, 2009. There were no complaints or findings such as absent sensation or reflexes, or decreased muscle strength, to support the conclusion that he had moderate incomplete paralysis of all of either upper extremity's radicular groups. The Board will next consider whether, from November 13, 2009 to April 2, 2015, moderate or more incomplete paralysis of all radicular groups was present in either upper extremity to warrant a 40 or 30 percent rating, respectively. The Board concludes that it was not, and so, higher ratings than the currently assigned 20 percent for either upper extremity's diabetic peripheral neuropathy are not warranted. The November 27, 2009 electromyogram was indicative of only mild sensory axonal loss in each upper extremity. In November 2011, monofilament testing of the extremities revealed intact sensations. In August 2012, the Veteran had good strength in his upper extremities bilaterally, and sensation was slightly hyperesthetic on his left forearm. In January 2013, cold, light touch, and proprioception were intact, sensory modalities were otherwise normal, and motor strength was 5/5 in all groups in his upper extremities, with no focal atrophy or fasciculations. The hands had good dexterity, and reflexes were 1+ throughout. On VA examination in May 2013, the Veteran reported only mild numbness of his right and left upper extremities, he had normal upper extremity strength, his deep tendon reflexes were 2+, light touch/monofilament testing was normal in the upper extremities, and there was no upper extremity muscle atrophy or trophic changes. The examiner graded the Veteran as having mild incomplete paralysis of his median nerves and normal ulnar and radial nerves bilaterally in his upper extremities, and indicated that the Veteran's upper extremities were otherwise normal. On VA neurology consultation in August 2014, the Veteran was well developed and had normal motor strength, tone, and bulk in his upper extremities, and his reflexes were 2+ and equal at the biceps; only the brachioradialis reflexes were absent. In October 2014, the Veteran had normal upper limb strength, bulk, and tone. There were no fasciculations and reflexes were 2 symmetrically at the biceps, triceps, and brachioradialis. The preponderance of the evidence indicates that prior to April 2, 2015, the Veteran did not have moderate incomplete paralysis of all radicular groups to warrant a rating higher than 20 percent for either upper extremity's diabetic peripheral neuropathy. There was no indication of loss of strength, weakness, incoordination, atrophy, fatigue, etc, to show that moderate incomplete paralysis was present. The impairment was wholly sensory, and even then, when sensation was impaired, it was only diminished, rather than absent, and there were no trophic changes. Motor strength, tone, and bulk was not affected. The Board will next consider whether, from April 2, 2015, severe or more incomplete paralysis of all radicular groups was present in either upper extremity to warrant a 70 or 60 percent rating, respectively. The Board concludes that it was not, and so higher ratings than the currently assigned 40 and 30 percent ratings for right and left upper extremity diabetic peripheral neuropathy, respectively, are not warranted. At the time of the April 2, 2015 VA examination, the Veteran reported only moderate constant and intermittent pain, paresthesias, and numbness in his upper extremities. He reported no weakness in them. His elbow strengths, grip strengths, and pinch strengths were normal. Only wrist flexion and extension were decreased, and this was only mildly at 4/5 bilaterally. Deep tendon reflexes were normal. Sensory was normal in the upper extremities except for at the inner and outer forearm and hands/fingers, where it was merely decreased instead of trace or absent, and cold sensation was normal. There were no trophic changes or atrophy in the upper extremities, and the examiner graded the impairment as only moderate incomplete paralysis of the right and left median and ulnar nerves. The other nerves in the radicular groups were not affected. It is clear based on the evidence that the Veteran has no more than moderate incomplete paralysis of all of either upper extremity's radicular groups currently to warrant higher ratings than the currently assigned 40 and 30 percent ratings for right and left upper extremity diabetic peripheral neuropathy. This is in consideration of the limitations mentioned, including deteriorated typing skills, weakened grasping sensation in both hands, and using special tip pens to help apply pressure when writing. Accordingly, increased schedular ratings for this time period are denied. Other considerations The Board has considered any and all lay statements from the Veteran about the severity of his disabilities. The Veteran may be competent to report and categorize the degree of symptoms because it may only require personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of the disorders at issue according to the appropriate diagnostic codes. Probative competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have considered pertinent clinical findings and rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. As such, the Board finds these records to be more probative than any subjective complaints from the Veteran as to the degree of symptomatology. The discussions above reflect that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected upper extremity diabetic peripheral neuropathy disabilities. The symptoms and impairment caused by the service-connected neuropathies are specifically contemplated by the schedular rating criteria. This includes for impairment caused by pain, weakness, decrease or loss of sensation and/or dexterity, and impairment of use. Thus, consideration of whether the Veteran's disability pictures exhibit other related factors such as those provided by the regulations as "governing norms" is not required and referral for extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities in concluding that referral for consideration of an extraschedular rating is not warranted. Even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific service-connected disability. As such, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App.447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran indicated in May 2009 that he was working as a typist, and he apparently continues to work for the federal government in an office position. There is no evidence of unemployability due to the disabilities at issue. Further consideration of TDIU is not warranted. ORDER A 20 percent rating for right upper extremity diabetic peripheral neuropathy is warranted from May 18, 2009, to November 13, 2009, subject to the controlling regulations applicable to the payment of monetary benefits. A 20 percent rating for left upper extremity diabetic peripheral neuropathy is warranted from May 18, 2009, to November 13, 2009, subject to the controlling regulations applicable to the payment of monetary benefits. A rating in excess of 20 percent for right upper extremity diabetic peripheral neuropathy from November 13, 2009, to April 2, 2015 is denied. A rating in excess of 20 percent for left upper extremity diabetic peripheral neuropathy from November 13, 2009, to April 2, 2015 is denied. A rating in excess of 40 percent for right upper extremity diabetic peripheral neuropathy from April 2, 2015 is denied. A rating in excess of 30 percent for left upper extremity diabetic peripheral neuropathy from April 2, 2015 is denied. REMAND March 2008, November 2009, January 2013, and/or other VA medical records which are contained in the claims folder indicate that the Veteran had had bilateral lower limb electromyography done by Dr. S. Raju at the Danville VA Medical Center physical medicine and rehabilitation clinic on March 10, 2008, and that it showed positive electrodiagnostic evidence for peripheral neuropathy. That VA electromyographic report is not of record and is relevant to the Veteran's appeals for higher ratings for his service-connected right and left lower extremity peripheral neuropathy disabilities. It may contain information showing that higher ratings are warranted. The reports which are of record merely show that the March 10, 2008 lower extremity electromyogram was positive, and not the severity of the neuropathy shown by the electromyogram. Accordingly, remand to obtain the report of the electromyogram is required, in order to assist the Veteran with his claims for increased ratings for bilateral lower extremity diabetic peripheral neuropathy pursuant to 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the actual report of the bilateral lower extremity electromyography which was conducted by Dr. S. Raju at the Danville VA Medical Center physical medicine and rehabilitation clinic on March 10, 2008. 2. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs