Citation Nr: 1740793 Decision Date: 09/19/17 Archive Date: 10/02/17 DOCKET NO. 13-31 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. 2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. 3. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 5. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Ryan Farrell, Accredited Agent ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran had active service from September 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board previously remanded this claim in June 2015 for a VA medical examination, private medical records, and VA medical records. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. The peripheral neuropathy of the right upper extremity has not resulted in moderate incomplete paralysis. 2. The peripheral neuropathy of the left upper extremity has not resulted in moderate incomplete paralysis. 3. The peripheral neuropathy of the right lower extremity has not resulted in moderate incomplete paralysis. 4. The peripheral neuropathy of the left lower extremity has not resulted in moderate incomplete paralysis. 5. The Veteran's service-connected disabilities do not satisfy the threshold criteria for a TDIU and the claim does not warrant extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a Diagnostic Code (DC) 8715 (2016). 2. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a Diagnostic Code (DC) 8715 (2016). 3. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a Diagnostic Code (DC) 8721 (2016). 4. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a Diagnostic Code (DC) 8721 (2016). 5. The criteria for an award of TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2015); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The Veteran's claim of entitlement to a higher initial rating arises from his disagreement with the initial evaluation following the grant 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). Regarding the duty to notify, VA must inform the Veteran of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence that the Veteran was expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Veteran was accordingly notified of the evidence that was necessary to substantiate his claims in January 2012 letters. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159 (2016). In this case, the RO has obtained and associated with the claims file service treatment records and post-service VA and private treatment records. The Veteran has not identified any outstanding treatment records. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination in March 2012 and April 2014. The Board previously remanded this claim in June 2015 for a VA medical examination and outstanding medical records. In accordance with the remand instructions, records from Wetzel Family Medicine and Martinsburg VA Medical Center were associated with the claims file in July 2015 and February 2017, respectively. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was scheduled to receive a VA examination in March 2017. Unfortunately, the Veteran failed to report to the examination, and neither he nor his representative provided good cause for his failure to report. See April 2017 Compensation and Pension Exam Inquiry. As such, his claim will be rated based on the evidence of record. 38 C.F.R. § 3.655. All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2016). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. II. Increased Rating A. Legal Analysis VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 3.321 (2016); see generally, 38 C.F.R. § Part IV (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2016). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2016). 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 the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2016). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2016); see also 38 C.F.R. § 3.102 (2016). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2016); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). B. Peripheral Neuropathy of Upper and Lower Extremities The Veteran's service-connected peripheral neuropathy of the bilateral upper and lower extremities has been rated by the RO under the provisions of Diagnostic Codes 8715 and 8721 respectively. The Veteran contends that his peripheral neuropathy of the upper and lower extremities is more severe than the current ratings reflect. See Notice of Disagreement. Under Diagnostic Code 8715, a 10 percent rating is warranted for mild incomplete paralysis of the median nerve, ratings of 20 percent (for the minor extremity) and 30 percent (for the major extremity) are warranted for moderate incomplete paralysis of the median nerve. Ratings of 40 percent (for the minor extremity) and 50 percent (for the major extremity) are warranted for severe incomplete paralysis of the median nerve. Ratings of 60 percent (for the minor extremity) and 70 percent (for the major extremity) are warranted for complete paralysis of the median nerve. Under DC 8721, mild incomplete neuralgia of the external popliteal nerve warrants the current 10 percent rating. 38 C.F.R. § 4.124a. Moderate incomplete neuralgia of the external popliteal nerve warrants a 20 percent rating. 38 C.F.R. § 4.124a, DC 8721. Severe incomplete neuralgia of the external popliteal nerve warrants a 30 percent rating. Id. Complete paralysis of the external popliteal nerve with foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, loss of extension (dorsal flexion) of proximal phalanges of the toes; lost abduction of the foot; weakened adduction; and anesthesias covering the entire dorsum of the foot and toes warrants a 40 percent disability rating. Id. In applying the schedular criteria for rating peripheral nerve disabilities, 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 varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is sensory, the rating should be for the mild, or at most, the moderate degree. Turning to the evidence of record, the Veteran was afforded a VA peripheral neuropathy examination in March 2012. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported a pin and needle burning paresthesia in his toes and fingers with loss of sensation. He is right hand dominant. Upon examination, reflex findings were normal in all extremities. There was no showing of constant or intermittent pain in all extremities. There were moderate paresthesia, dysesthesias, and/or numbness in all extremities. Muscle strength was normal of 5/5 throughout his bilateral upper and lower extremities. Biceps and triceps reflexes were normal of 2+ bilaterally. The examination revealed that light touch/monofilament testing results, position sense, and vibration sensations were all normal for all extremities. Light touch was decreased in his foot/toes and hands/fingers. The Veteran had no muscle atrophy and no trophic changes. The examiner noted that all nerves were normal. In a February 2013 addendum opinion, the examiner opined that the Veteran suffers from a mild diabetic peripheral neuropathy with only sensory findings. The examiner noted the Veteran has a diffuse distal polyneuropathy which clinically only involves small distal sensory nerve fibers. There is no motor function loss, weakness, or paralysis. The examiner noted that the Veteran has sensory paresthesia and dysesthesias in the fingers and toes with partial loss of light touch sensation in the fingers and toes. The examiner opined that the Veteran's upper and lower extremity polyneuropathy is mild and without paralysis. The Veteran underwent another VA examination in April 2014. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported a constant sensation of numbness on all fingertips, appearing to get worse during cold weather. Again, the examiner noted the Veteran is right handed. Upon examination, the Veteran had 5/5 strength in all extremities. Deep tendon reflexes were normal in the biceps, triceps, brachioradialis, and knees. They were decreased in his ankles. Light touch/monofilament testing was normal in the shoulder area, the forearm, bilateral ankles/lower legs, and the knees/thighs. It was decreased in the bilateral hands/fingers and absent in the bilateral feet/toes. Position sense was normal in all extremities. Vibration sensations were decreased in the lower extremities and normal in the upper extremities. The Veteran did not have any muscle atrophy. The examiner noted that all nerves were normal. The examiner opined the Veteran's peripheral neuropathy is primarily sensory. A July 2015 Wetzel Family Medicine treatment report notes diabetes without complications. Upon physical examination, the Veteran showed normal pulses with no mention of any sensory deficits. A September 2016 Martinsburg VA Medical Center treatment report reflects the Veteran's extremities are negative for edema and calf tenderness. Furthermore, the Veteran showed no focal or motor deficits. As noted above, in order to warrant a rating in excess of 10 percent, the Veteran's disabilities have to be manifested by moderate incomplete paralysis of the median or popliteal nerves. Based on a review of the evidence, the Board concludes that ratings in excess of 10 percent for all extremities are not warranted. The Veteran's peripheral neuropathy of the bilateral upper extremities was manifested by paresthesia and diminished sensation. This is consistent with the current 10 percent ratings. See 38 C.F.R. § 4.124a, DC 8715. A higher rating for these disabilities would require a finding of at least moderate incomplete paralysis of the median nerve. Id. The March 2012 and April 2014 examiners found each individual nerve to be normal, which suggests only sensory symptoms. The Veteran had normal strength, normal deep tendon reflexes, and no atrophy. Thus, the record does not show symptoms severe enough to warrant a higher rating for peripheral neuropathy of both upper extremity and those claims are denied. The Veteran's peripheral neuropathy of the bilateral lower extremities was manifested by paresthesia, decreased light tough/monofilament sensation, and decreased vibratory sensation. This is consistent with the current 10 percent ratings. See 38 C.F.R. § 4.124a, DC 8721. A higher rating for these disabilities would require a finding of at least moderate incomplete neuralgia of the external popliteal nerve. Id. The March 2012 and April 2014 examiners found each individual nerve to be normal, which again suggests only sensory symptoms. Again, the Veteran had normal strength, normal deep tendon reflexes, and no atrophy. Thus, the record does not show symptoms severe enough to warrant a higher rating for peripheral neuropathy of both lower extremity and those claims are denied. The Board has also considered the statements of the Veteran that his disability warrants a higher rating because nerve damage is moderate. See September 2013 VA Form 9. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, but he is not competent to identify his disability according to a specific rating in the diagnostic codes. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Instead, the Board relies on the VA examiners who have rendered findings that directly address the criteria under which this disability is evaluated. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the absence of moderate incomplete paralysis to the median nerves or external popliteal nerves, the preponderance of the evidence weighs against the claims. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claims for ratings in excess of 10 percent for peripheral neuropathy of the bilateral upper and lower extremities must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). III. TDIU A. Legal Analysis Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2015). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2015) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Service connection is in effect for the following disabilities: diabetes mellitus type 2 with erectile dysfunction (10 percent disabling); left lower extremity neuropathy (10 percent disabling); right lower extremity neuropathy (10 percent disabling); left upper extremity neuropathy (10 percent disabling); and right upper extremity neuropathy (10 percent disabling). The Veteran's combined disability rating is 40 percent. He is thus not eligible for entitlement to a TDIU on a schedular basis, because there is no single disability rated 60 percent, and the ratings do not combine to 70 percent. Consequently, the Board must now determine whether these service-connected disabilities preclude the Veteran from engaging in substantially gainful employment. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. B. Merits of the Claim According to the Veteran's March 2014 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran stated he is unable to work due to his non-service connected psoriasis. He reported that he last worked full-time in maintenance in December 2010. The Veteran listed prior occupations in fabricating. The Veteran also reported that he has two years of college education. The Veteran also indicated that he has some training in hydraulics, maintenance, and electrical. In February 2012, the Veteran's wife submitted a statement in support of his claim. The spouse states that the Veteran cannot work due to his illness, pointing out his scarred skin and redness. She states that, while the Veteran wants to work, appearance means a lot. The Veteran was afforded a VA examination a VA examination in March 2012. The examiner opined that diabetic neuropathy would have some functional impact by impairing fine manipulation and tool use. At his most recent VA examination in April 2014, the Veteran reported working as a hydraulic technician for 21 years. He commuted daily from Gettysburg to Baltimore and periodic travel to various states. When he became eligible to retire, the Veteran indicated he took the opportunity because he was never home. He reports he now stays busy with routine household repairs. The VA examiner reported that the Veteran's upper and lower polyneuropathy causes some functional impairment. The examiner commented that the Veteran's polyneuropathy affects his employability because it has gradually affected his fine motor skills; however, he continues to work well. The above evidence reflects that the Veteran's service-connected disabilities alone have not rendered the Veteran unable to obtain and maintain substantially gainful employment. The Board has considered the lay assertions. While it is clear that the Veteran's diabetic neuropathy causes some functional impairment and could affect his ability for fine manipulation, there is nothing in the record to suggest that the Veteran cannot obtain sedentary employment. Moreover, the Veteran's spouse reported the Veteran wants to work, however he was unable to due to his appearance. Further, he has reported voluntarily retiring due to a non-service connected disability (psoriasis) and eligibility for retirement. After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran's service-connected disabilities alone have not precluded him from obtaining and maintaining substantially gainful employment. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C.A. § 5107(b). ORDER 1. Entitlement to an increased rating for peripheral neuropathy of the left upper extremity is denied. 2. Entitlement to an increased rating for peripheral neuropathy of the right upper extremity is denied. 3. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity is denied. 4. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity is denied. 5. Entitlement to TDIU is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs