Citation Nr: 1606376 Decision Date: 02/19/16 Archive Date: 03/01/16 DOCKET NO. 14-17 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to a higher initial rating in excess of 10 percent for radiculopathy, right upper extremity. 2. Entitlement to a higher initial rating in excess of 20 percent for diabetic peripheral neuropathy, right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Bordewyk, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which granted service connection for peripheral neuropathy, right upper extremity, with an initial 20 percent disability assigned, and granted service connection for peripheral neuropathy, right lower extremity, with an initial 10 percent disability rating assigned, each effective August 13, 2012. Both disabilities were granted as secondary to an in-service cerebrovascular accident. In an April 2014 rating decision, the RO stated that the basis for the original grant of service connection for the right upper and lower extremity disabilities was incorrect. Instead, following clarification as to etiology from a new VA examiner, the issue involving the right upper extremity was renamed radiculopathy, right upper extremity, and the initial rating assigned was changed to 10 percent, effective August 13, 2012. The issue involving the right lower extremity was renamed diabetic peripheral neuropathy, right lower extremity, with an increased rating of 20 percent assigned, effective August 13, 2012. The issues have been recharacterized accordingly herein. The Veteran failed to appear for a videoconference hearing before the Board, which was scheduled for December 15, 2015. There are two letters providing advanced notice of the hearing associated with the claims file. The Veteran has not offered any explanation showing good cause for the failure to appeal; as such, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2015). In December 2015, the Veteran's representative submitted a waiver of local jurisdiction in regard to evidence added to the record after certification of the appeal to the Board in June 2014. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2015). The issue of entitlement to a higher initial rating for diabetic peripheral neuropathy of the right lower is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, right upper extremity radiculopathy has manifested by moderate incomplete paralysis of all radicular groups throughout the period on appeal. CONCLUSION OF LAW The criteria for a 40 percent disability rating, but no higher, for radiculopathy, right upper extremity (major), are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8513 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. Additionally, the Veteran was provided VA examinations in February 2013, February 2014, and March 2015 to assess the nature and severity of the Veteran's right upper extremity radiculopathy. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating 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 (2015). Use of terminology such as "severe" by VA examiners and others, although 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 (2015). 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. See 38 C.F.R. § 4.7 (2015). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, will, however, be expected in all instances. 38 C.F.R. § 4.21 (2015). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, service connection was granted for the right upper extremity disability on the basis that the disability was caused by an in-service cerebrovascular accident. The disability was initially rated under 38 C.F.R. § 4.124a, Diagnostic Code 8514 (2013), for incomplete paralysis of the radial nerve. In an April 2014 rating decision, however, the RO stated that the basis for the original grant of service connection for the right upper extremity disability was incorrect. Instead, following clarification as to etiology from a new VA examiner, the issue involving the right upper extremity was renamed radiculopathy, right upper extremity, and the initial rating assigned was changed to 10 percent, effective August 13, 2012, under 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2014), for incomplete paralysis of the median nerve. The 10 percent rating was based upon an April 2014 addendum to a VA examiner's February 2014 VA examination report. In the addendum, the examiner finds that 70 percent of the right upper extremity radiculopathy disability is caused by nonservice-connected carpal tunnel syndrome with the remaining 30 percent caused by service-connected degenerative joint and disc disease of the cervical spine. Based on this addendum, the RO reduced the Veteran's disability rating from one based on moderate symptomatology to a rating for mild symptomatology without explanation for how that determination was reached. At the outset, the Board finds that the 2014 VA examiner did not provide a rationale or explanation for how it was determined that only 30 percent of the right upper extremity disability is caused by the service-connected cervical spine disability or which symptoms are attributable to the service-connected disability as opposed to the nonservice-connected disability. As the examiner's opinion was provided without a rationale and since it is unclear from the record which symptoms are attributable to which disability, the Board will consider all of the symptomatology contained in the record as evidence of the severity of the service-connected right upper extremity radiculopathy. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question attributed to the service-connected disability). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2015). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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. Complete paralysis of the radial nerve is marked by drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. Id. The ratings differentiate between the major or minor side and, as the Veteran is consistently found to be right hand dominant, his right upper extremity is considered the major side under these diagnostic codes. The Board will, therefore, only consider the ratings pertinent to the major side. Diagnostic Code 8514, the first rating code assigned to the Veteran's disability, which evaluates incomplete and complete paralysis of the radial nerve, provides that moderate incomplete paralysis is rated 30 percent disabling on the major side while severe incomplete paralysis is rated 50 percent disabling on the major side. 38 C.F.R. § 4.124a, Diagnostic Code 8514. Complete paralysis of the radial nerve warrants a 70 percent disability rating for the major side. Diagnostic Code 8515, the rating code currently assigned, provides for a 10 percent disability rating for mild symptoms involving the median nerve of the major side. With moderate symptoms involving the median nerve, a 30 percent rating is assignable for the major side. Severe symptoms warrant a 50 percent rating while complete paralysis of the median nerve warrants a 70 percent rating for the major extremity. The Board notes that an additional rating code is applicable in this case. Diagnostic Code 8513 addresses paralysis of all radicular groups of nerves. Under this Code, a 20 percent rating is assigned for mild incomplete paralysis in the major extremity. A 40 percent rating is warranted for moderate incomplete paralysis in the major extremity. Severe incomplete paralysis in the major extremity results in an evaluation of 70 percent. The highest rating of 90 percent regarding the major extremity is reserved for complete paralysis. 38 C.F.R. § 4.124a. As explained below, resolving all doubt in the Veteran's favor, the Board finds that the right upper extremity disability has more nearly approximated a 40 percent disability rating under Diagnostic Code 8513, for moderate impairment of all radicular nerves throughout the entire period on appeal. In February 2013, a VA examiner found mild constant and intermittent pain, mild numbness, and moderate paresthesias and/or dysesthesias. Regarding strength, elbow and wrist flexion and extension were impaired at 3/5 and grip and pinch strength were 2/5. Reflexes in the right bicep and tricep were absent and were hypoactive in the brachioradialis. The sensory examination found decreased sensation in the shoulder, inner/outer forearm, and hand/fingers. The examiner concluded that there was incomplete, mild impairment of the radial and median nerves in the upper extremity. During an August 2013 VA neck/cervical spine examination, the examiner noted mild radiculopathy of the upper and middle radicular group, productive of mild paresthesias and/or dysesthesias and numbness. During a February 2014 VA examination, the examiner noted the absence of constant or mild pain but severe paresthesias and/or dysesthesias and numbness. Regarding strength, elbow and wrist flexion and extension, grip, and pinch strength were 4/5. Reflexes in the right bicep, tricep, and brachioradialis were hypoactive. The sensory examination found decreased sensation in the shoulder, inner/outer forearm, and hand/fingers. The examiner concluded that there was incomplete, moderate impairment in all of the nerves, including the radial, median, ulnar, musculocutaneous, circumflex, long thoracic, upper radicular, middle radicular, and lower radicular nerves. The examiner further noted that although the paralysis noted above is marked moderate, given that it affects multiple nerves, the overall rating of severity would be considered severe as per the Veteran's report. The examiner further stated that all disease entities in the Veteran are overlapping and that the Veteran was unable to portion out which symptoms or what percentage of symptoms was due to each service-connected and nonservice-connected right upper extremity disease. In an April 2014 addendum, the examiner explained that the in-service cerebrovascular accident did not cause the right upper extremity radiculopathy, but rather the disability caused by nonservice-connected carpal tunnel syndrome and service-connected degenerative joint and disc disease of the cervical spine. The disabilities jointly impacted the median nerve, which the examiner noted was still manifested by moderate incomplete paralysis. Finally, in March 2015, a VA peripheral neuropathy examiner again noted the absence of constant or mild pain but instead found moderate paresthesias and/or dysesthesias and numbness related to a peripheral neuropathy condition. The examiner found full strength in elbow and wrist flexion and extension, grip, and pinch. Reflexes in the right bicep, tricep, and brachioradialis were each normal. The examiner did not conduct a sensory examination and did not state which and to what extent any nerves were affected. In a March 2015 VA examination for diabetic peripheral neuropathy, the examiner noted moderate paresthesias and/or dysesthesias and numbness and degreased strength in wrist flexion and extension of 4/5. A VA neck examination conducted at the same time also found moderate paresthesias and/or dysesthesias and numbness and decreased strength of 4/5 with wrist flexion and extension as well as finger flexion and abduction. The examiner stated that there was mild radiculopathy of the right upper radicular group. VA treatment records show continued complaints of right upper extremity weakness, paresthesias, and numbness, but do not provide any further evidence as to the severity of the right upper extremity radiculopathy. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's right upper extremity radiculopathy has manifested by moderate, incomplete paralysis of all radicular group nerves, which warrants a 40 percent disability rating, throughout the entire period on appeal. The February 2013 and March 2015 VA examiners consistently found moderate paresthesias and/or dysesthesias and numbness. Although the February 2014 VA examiner found the combined impact of the radiculopathy on all nerves to be severe with paresthesias and/or dysesthesias and numbness, the examiner noted that some of that disability in the radial and median nerves is attributable to a nonservice-connected disability and stated that each of the impacted nerves experienced only moderate incomplete paralysis. In addition, the majority of the VA examination reports have noted decreased strength, sensation, and/or reflexes in the right upper extremity, which the Board finds to be supportive of moderate incomplete impairment. Although the February and August 2013 VA examiners noted only mild incomplete paralysis of radial and median or upper and middle radicular groups and the 2015 VA examiners only noted mild radiculopathy of the upper radicular group, the 2014 VA examiner found moderate radiculopathy impacted all radicular nerves. The February 2014 VA examination report contained the most complete findings related to the upper extremity of record. Therefore, resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's right upper extremity radiculopathy disability has manifested by moderate incomplete paralysis of all radicular group nerves throughout the entire period on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The Court of Appeals for Veteran Claims has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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. Here, nature and severity of the Veteran's right upper extremity radiculopathy disability, including the weakness, loss of sensation, paresthesias and/or dysesthesias, and numbness, are contemplated by the rating criteria. In other words, he does not experience problems due to this service-connected disability that are not accounted for by the rating schedule. Therefore, referral for extra-schedular consideration is not warranted. Finally, since the Veteran has been awarded entitlement to TDIU throughout all applicable periods during this appeal, the issue will not be considered herein. ORDER A 40 percent disability rating, but no higher, for right upper extremity radiculopathy is granted. REMAND The Board finds that a new VA examination is warranted to assess the current nature of the right lower extremity diabetic peripheral neuropathy. The February 2014 VA examiner's findings represent a more severe increase in symptomatology from that found upon examination just one year prior, where mild impairment of three nerves in 2013 increased to moderate to severe impairment of all 11 nerves in the lower extremities, including the sciatic nerve. Then, the March 2015 VA diabetic peripheral neuropathy examination failed to comment on which nerves were affected by the service-connected disability. As such, the Board finds that a new VA examination is warranted to assess the current severity of the right lower extremity diabetic peripheral neuropathy and which nerves are involved. All records of ongoing VA treatment should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all ongoing VA medical records and associate them with the claims file. 2. Then afford the Veteran an appropriate VA examination with a neurologist to ascertain the severity of his service-connected right lower extremity diabetic peripheral neuropathy. The examiner should review the claims folder and indicate that such a review was completed. All indicated testing should be conducted. The examiner should report all neurologic impairment resulting from the service-connected diabetic peripheral neuropathy of the right lower extremity. The examiner should identify the nerve impaired and indicate whether there is complete or partial paralysis, neuralgia, or neuritis; and whether any partial paralysis, neuritis or neuralgia is mild, moderate, moderately severe, or severe. In terms of sciatic nerve impairment, the examiner should also state whether the foot dangles and drops, whether there is active movement possible of the muscles below the knee, or whether flexion of the knee is weakened or lost. The examiner should comment as to whether there is marked muscle atrophy. If there is neurologic impairment of the right lower extremity that is not related to the service-connected back disability, the examiner should so report. The rationale for all opinions expressed should also be provided. 3. Then readjudicate the appeal and issue a supplemental statement of the case as appropriate. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs